A. Whether the contingency possession of a deadly weapon constitutes "Carrying" under Article 3 (1) of the Punishment of Violence, etc. Act (negative)

(b) Where a person was indicted in violation of Article 3(2) of the Punishment of Violences, etc. Act by carrying a deadly weapon at night and committing a crime under Article 319 of the Criminal Act, and the fact of carrying a deadly weapon is not recognized, whether the court shall deliberate and determine the facts of intrusion without any modification of an indictment (affirmative)

A. In light of the purpose of the Punishment of Violences, etc. Act and the purport of Article 3(1) of the same Act, “a person who commits the crime by carrying a deadly weapon or other dangerous articles” under Article 3(1) of the same Act does not include cases where a person carries a deadly weapon or carries a body under the intention to use in the crime at the scene of the crime, but does not include cases where a person carries a deadly weapon or carries it without distinction from the crime at all.

B. From among the facts charged for the violation of Articles 3(2) and (1), 2(1), and 319(1) of the Criminal Act, "a person who has carried a lethal weapon at night and committed a crime under Article 319 of the Criminal Act" shall be deemed to include the facts charged for the crime of intrusion upon residence under Article 319(1) of the Criminal Act, among the facts charged for the crime of intrusion upon residence by violating Article 319(1) of the Punishment of Violences, etc. Act and Article 319(1) of the Criminal Act. In this case, even if the court recognizes the fact of intrusion upon residence, the court shall deliberate and decide on the facts charged for the violation of Article 319(1) of the Criminal Act without going through the amendment procedure to the indictment.

(b) Article 3 of the Punishment of Violences, etc. Act; Article 254 of the Criminal Procedure Act; Article 319 of the Criminal Act

A. Supreme Court Decision 81Do3074 delivered on February 23, 1982, 85Do1591 delivered on September 24, 1985

Defendant

Prosecutor

Attorney Park Young-young

Daejeon District Court Decision 89No1078 delivered on January 11, 1990

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

We examine the grounds of appeal.

With respect to No. 1:

In light of the purpose of the Punishment of Violences, etc. Act and the purport of Article 3(1) thereof, a person who committed the crime by carrying a deadly weapon or other dangerous articles (hereinafter referred to as a " deadly weapon") as stipulated in Article 3(1) of the same Act shall not include the case where he carries a deadly weapon or carries his body under the intention to use it at the scene of the crime (see, e.g., Supreme Court Decision 81Do3074, Feb. 23, 1982; 85Do1591, Sept. 24, 1985).

According to the facts acknowledged by the court below, the defendant collected mushroom from August 23, 1989 on the day of the crime and carried a knife with a knife while carrying it in mountain, not with the intent to use it in entering the residence as stated in the judgment, and did not use it at the time of entering the residence as stated in the judgment. In light of the records, such fact-finding by the court below is justified, and it cannot be said that there is a violation of the rules of evidence such as theory, and if it is true, the defendant cannot be deemed as a person who committed a crime of entering the residence by carrying a deadly weapon as stipulated in Article 3 (1) of the same Act, and therefore, the judgment of the court below

With respect to the second ground:

Article 319(1) of the Punishment of Violences, etc. Act provides that "a person who has carried a lethal weapon at night and commits a crime under Article 319(1) of the Criminal Act" shall be deemed to include the facts charged in the crime of intrusion upon residence under Article 319(1) of the Criminal Act among the facts charged in violation of Articles 3(2) and (1) and 2(1) of the Criminal Act, and Article 319(1) of the Criminal Act. In this case, even if the court recognizes the facts of intrusion upon residence, the court may deliberate and decide on the facts charged in violation of Article 319(1) of the Criminal Act without any amendment of the indictment if it does not determine the facts charged in the crime of intrusion upon residence for which a trial was requested.

According to the indictment of this case, at around 22:55 August 23, 1989, the charge 1 against the defendant was found not guilty on the ground that the defendant had two knife knifes, which are dangerous objects to the house of the victim's accommodation, and the applicable provisions of law are Article 3 (2) and (1) and Article 2 (1) of the Punishment of Violences, etc. Act and Article 31 (1) of the Criminal Act. According to the reasoning of the judgment of the court below, the court below judged that this part of the charge constitutes a case where there is no evidence to prove that the defendant possessed or used the knife knife with the intent to use in the house of the victim's accommodation. Thus, the court below did not examine whether the defendant committed the crime of intrusion upon residence under Article 319 (1) of the Criminal Act, which is the elements of the indictment, and it affected the judgment, and therefore, it is therefore justified.

Therefore, all of the judgment below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Young-ju (Presiding Justice)