2016Do941 A. Violation of the Punishment of Violences, etc. Act (a)

(b) Interference with business;

(c) Violence;

A

Pacciny arsen

Attorney AL (National Ship)

Busan District Court Decision 2015No3448 Decided December 24, 2015

March 10, 2016

The judgment below is reversed, and the case is remanded to Busan District Court Panel Division.

Judgment ex officio is made.

1. Act which was committed in the past according to the change of the legal ideology which was the basis of the enactment of penal statutes;

The evaluation has changed and recognized it as a crime, and the punishment itself has been unfair; or

section 1(2) of the Criminal Code is amended or amended in the reflective consideration that an excessive punishment has been imposed.

The new law shall apply in accordance with paragraph (1).

2. A. According to the reasoning of the lower judgment, the lower court: (a) dangerous articles among the facts charged in the instant case.

The Punishment of Violences, etc. Act shall apply to the act of inflicting an injury upon the victim by carrying the victim.

The former Punishment of Violences Act (amended by Act No. 13718, Jan. 6, 2016; hereinafter referred to as "former Punishment of Violences Act").

C) In the application of Articles 3(1) and 2(1)3 of this Act, and Article 257(1) of the Criminal Act, the judgment of conviction is guilty.

The first instance judgment was affirmed.

(b) Article 3 (1) of the former Punishment of Violences Act means an organization or group by force or by force;

A person who commits any of the crimes referred to in the subparagraphs of Article 2(1) by referring to the power of a group; or

A person who commits a crime while in prison with a deadly weapon or other dangerous object shall be punished by the formula set forth in the subparagraphs of Article 2 (1).

Pursuant to paragraph (1) of Article 2, the following crimes shall be committed habitually:

A person who has committed any of the following offenses shall be punished in accordance with Article 257 of the Criminal Act:

Paragraph (1) and Article 257 (2) of the Criminal Act shall be punished by imprisonment for a definite term of not less than three years.

Provided, however, the punishment of violence, etc., which was amended and enforced by Act No. 13718 on January 6, 2016

Article 3(1) of the Act on the Law of the Republic of Korea is deleted, and the Criminal Code amended and enforced by Act No. 13719 on the same day.

Article 258-2 (Special Bodily Injury) is newly established and "a threat of collective or multiple force" in paragraph (1) shall show the power of collective or multiple persons.

When a person commits a crime under Article 257 (1) or (2) by carrying any dangerous or dangerous goods, he/she shall be subject to one year.

It stipulated that "A person shall be punished by imprisonment with prison labor for not more than ten years."

As such, the former Punishment of Violence defined the aggravated elements of Article 257(1) of the Criminal Act

Article 258-2(1) of the Criminal Act, instead of deleting Article 3(1) of the Punishment Act, means the above elements of a crime.

Newly inserted that the statutory penalty is lower than that of Article 3(1) of the former Punishment of Violences Act, the above provision is applicable.

In light of general risk of bearing a mark of a heavy constituent element, the commission of an individual crime;

The above, although the specific form of conduct and the degree of infringement of legal interest are very diverse, it is uniformly 3 years;

on the grounds that the previous penal provisions are excessive, provided that the punishment shall be aggravated by imprisonment for a limited term

Since it should be viewed as a sexual measure, it is an alteration of the law after a crime under Article 1 (2) of the Criminal Code.

The punishment is more severe than that of the old law.

Thus, Article 1(2) of the Criminal Act provides that the charge of injuring the carrying of dangerous articles among the facts charged in the instant case

In accordance with the provisions of the former Punishment of Violences Act, a corporation shall not be subject to aggravated punishment, and the punishment of a new corporation

Since punishment can only be imposed under Article 258-2(1) of the Act, the application of the former Punishment of Violences Act shall apply.

The judgment of the court below on the premise that it was no longer possible to maintain it.

C. Meanwhile, the first instance court maintained by the court below and found the remainder of the grounds for reversal.

Sector was sentenced to a single punishment on the ground that there was a concurrent crime relationship under the first sentence of Article 37 of the Criminal Code;

Ultimately, the judgment of the court below must be reversed in its entirety.

3. Therefore, without further proceeding to decide on the grounds of appeal, the judgment below is reversed, and the case is remanded.

The case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided by the assent of all participating Justices on the bench.

shall be determined as above.

Justices Park Young-young

Justices Park Byung-hee

Justices Kim Jae-han

Chief Justice Kim Jong-il