2015Do14678 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

(A) Violation of the Punishment of Violences, etc. Act;

Provided, That violation of the Punishment of Violence, etc. Act (or threat of deadly weapons),

Provided, That violation of the Child Welfare Act, such as a deadly weapon

A

Defendant

Attorney J (Court-Appointed)

Seoul High Court (Chuncheon) Decision 2015No143 Decided September 9, 2015

November 27, 2011

The judgment below is reversed and the case is remanded to Seoul High Court.

Judgment ex officio is made.

Of the facts charged in the instant case, the lower court convicted the Defendant of each of the charges by applying Articles 3(1) and 2(1)1 of the former Punishment of Violences, etc. Act (amended by Act No. 12896, Dec. 30, 2014; hereinafter referred to as the “former Punishment of Violences Act”), Article 283(1) of the Criminal Act, and Articles 3(1) and 2(1)1 of the Punishment of Violences, etc. Act (amended by Act No. 12896, Dec. 30, 2014; hereinafter referred to as the “Assault Punishment Act”), Article 2(1)1 of the Criminal Act, Article 283(1) of the Criminal Act, and Article 3(1)1 of the Punishment of Violences, etc. Act, and Article 260 of the Criminal Act, with respect to the portion of intimidation of each victims by carrying a deadly weapon or other dangerous articles.

Article 260 (1), Article 283 (1), and Article 366 (1) of the former Punishment of Violence Act applied by the lower court after the judgment of the lower court was rendered, the Constitutional Court rendered a decision of unconstitutionality as to all the parts concerning "a person who committed a crime under Articles 260 (1), 283 (1), and 366 of the Criminal Act by carrying a deadly weapon or other dangerous articles, and "a person who committed a crime under Articles 260 (1), 283 (1), and 366 of the Criminal Act by being carrying a deadly weapon or other dangerous articles," and Article 3 (1) of the Punishment of Violences Act, all of which were "a person who committed a crime under Articles 260 (1), 283 (1), and 366 of the Criminal Act," and the Constitutional Court rendered a decision of unconstitutionality as to all the parts concerning "a person who committed a crime under Articles 260 (1), 398, 2015Hun-Ga39,214 (Joint), 14).

In a case where the penal law or the legal provision becomes retroactively null and void due to the decision of unconstitutionality, the defendant's case prosecuted by applying the pertinent provision constitutes a crime (see, e.g., Supreme Court Decisions 91Do2825, May 8, 1992; 2005Do8317, Jun. 28, 2007) and thus, the judgment of the court below which convicted this part of the facts charged was no longer maintained.

On the other hand, the first instance court maintained by the court below rendered a single sentence on the ground that the above grounds for reversal and the remaining conviction are concurrent crimes under the former part of Article 37 of the Criminal Act. Thus, the judgment below should be reversed in its entirety.

Therefore, without further proceeding to decide on the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Sang-ok

Awards and Decorations for Judges

Justices Kim Chang-tae, Counsel for the defendant

Justices Cho Jong-hee