(영문) 대법원 2015.5.14. 선고 2015도3237 판결

The part of the judgment of the court below concerning the Defendants is reversed, and that part of the case is remanded to the Suwon District Court Panel.

Reasons

We examine ex officio.

1. As to Defendant B

A. The lower court convicted Defendant B of violating the Act on the Aggravated Punishment, etc. of Specific Crimes among the facts charged against Defendant B by applying Articles 5-4(1), 331(1) and (2), and 342 of the Act on the Aggravated Punishment, etc. of Specific Crimes.

However, the Constitutional Court rendered a decision on February 26, 2015 that "the part concerning Article 329 of the Criminal Act among Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 10210, Mar. 31, 2010), Article 329 of the Criminal Act concerning attempted crimes under Article 329 of the Criminal Act, Article 362 (1) of the Criminal Act among Article 363 (4) of the Criminal Act, and Article 363 of the Criminal Act that "the part concerning acquisition" under Article 362 (1) of the Criminal Act shall be unconstitutional" (hereinafter referred to as "the unconstitutional provision of this case where a decision of unconstitutionality is rendered"), although it is necessary to specially increase a punishment for a certain type of crime, the extent of the increase is obviously inappropriate and balanced with the ordinary criminal punishment system.

In addition to the violation of the basic principles of the Constitution guaranteeing the dignity and value of human beings, and the contents of the law are unconstitutional laws contrary to the principle of equality. The provisions of the unconstitutional law of this case stipulate the same elements as the provisions of the Criminal Act without stipulating any separate aggravated constituent elements, and stipulate the same elements, and they violate the basic principles of the Constitution guaranteeing the dignity and value of human beings by maintaining legitimacy and balance in the criminal system, which should be adjusted upward only by the statutory penalty, and also violates the basic principles of the Constitution guaranteeing human dignity and value.

B. The part concerning Article 331 of the Criminal Act and the attempts thereof, which applied to Defendant B’s violation of the Act on the Aggravated Punishment, etc. of Specific Crimes among the facts charged against Defendant B, are not subject to the adjudication of the above Constitutional Court. However, the aforementioned grounds for the decision of unconstitutionality as to Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes and the same reasons can be contrary to the fundamental principles or the principle of equality under the Constitution. Therefore, the lower court should have deliberated and determined whether there exists a need for the amendment of the indictment to avoid the unconstitutionality of the part concerning Article 331 of the Criminal Act and the attempts thereof among the facts charged against Defendant B, or for the amendment of the indictment to avoid the unconstitutional outcome following the said application. In so doing, it is erroneous in the lower court’s judgment that promptly found Defendant B guilty of violating the Act on the Aggravated Punishment, etc

2. As to Defendant C

The court below found Defendant C guilty by applying Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes and Articles 329, 331(1) and (2), and 342 of the Criminal Act with respect to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes among the facts charged against Defendant C (the original trial did not state Article 329 of the Criminal Act with respect to the applicable provisions of the Act on the Aggravated Punishment, etc. of Specific Crimes against Defendant C, but it is obvious that Article 329 of the Criminal Act has been applied to the above facts charged in light of the indictment against Defendant C and the facts charged.

However, the Constitutional Court rendered a decision on February 26, 2015 that "the part concerning Article 329 of the Criminal Act among Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 10210, Mar. 31, 2010), Article 329 of the Criminal Act concerning attempted crimes under Article 329 of the Criminal Act, Article 362 (1) of the Criminal Act among Article 363 (4) of the Criminal Act, "the part concerning "acquisition" under Article 363 of the Criminal Act is unconstitutional," and Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 329 of the Criminal Act was retroactively invalidated, and Article 329 of the Criminal Act was retroactively invalidated due to the decision of the Constitutional Court, and the part concerning the larceny under Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes cannot be applied to the case of larceny under Article 3605 of the Criminal Act (see, 298.).

3. Scope of reversal

Therefore, among the judgment of the court below, Defendant B’s violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (thief) and violation (thief) of the Act on the Aggravated Punishment, etc. of Specific Crimes (thief) due to the theft by Defendant C should be reversed. The above part of Defendant B is in concurrent crimes between each of the remaining crimes and Article 37 of the Criminal Act that found Defendant C guilty. Since the above part of Defendant C is in concurrent crimes under the former part of Article 37 of the Criminal Act or concurrent crimes under the former part of Article 37 of the Criminal Act, the judgment of the court below should be sentenced to one of the defendants

4. Conclusion

Therefore, without further proceeding to decide on the grounds of appeal, the part concerning the Defendants among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.