2015Do18864(A) Violation of the Punishment of Violences, etc. Act (a)

(b) Injury;

A

Defendant

Attorney Q Q (Korean Office Line)

Daejeon District Court Decision 2015No2557 Decided November 13, 2015

February 18, 2016

The judgment below is reversed, and the case is remanded to Daejeon 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.

Pursuant to paragraph (1), new law shall be applied (Supreme Court Decision 2009Do12930 Decided March 11, 2010, Supreme Court Decision 2009Do12930, Supreme Court Decision 20

Seoul High Court Decision 2013Do4862, 2013 Jeondo101 decided July 11, 2013

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 applying Articles 3(1) and 2(1)3 of this Act, Article 257(1) of the Criminal Act, the determination of guilty shall be made.

had been.

(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 by carrying a deadly weapon or other dangerous article shall be punished by the formula set forth in the subparagraphs of Article 2 (1).

A person who habitually commits any of the following crimes shall be punished in accordance with the Act, and Article 2 (1) of the Act shall apply to such person:

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, among the facts charged of this case, injury to the victim by carrying dangerous articles.

In accordance with Article 1(2) of the Criminal Act, the act of taking action shall be governed by the provisions of the former Punishment of Violences Act.

Therefore, it is not possible to punish an aggravated punishment, and only can it be punished under Article 258-2 (1) of the Criminal Code as a new corporation.

The judgment of the court below that applied the provisions of the former Punishment of Violences Act is no longer possible.

C. Meanwhile, the court below erred by misapprehending the legal principles as seen above and the remaining convictions

As a result, the lower judgment was rendered on the ground that the former sentence was concurrent crimes, and thus, the lower judgment was eventually rendered.

all of them must be reversed.

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 Kim Yong-deok

Justices Kim Jae-han

Chief Justice Kim Jong-il