[1] Whether "an offense prescribed by this Act" under Article 7 of the Punishment of Violences, etc. Act means only "an offense prescribed by the Punishment of Violences, etc. Act" (affirmative)

[2] The meaning of "Carrying a dangerous weapon" under Article 7 of the Punishment of Violences, etc. Act / The mere fact that a person carries a deadly weapon that is likely to be used for a crime under the same Act without justifiable grounds meets the elements of the crime in violation of the same Act (affirmative), and whether the fact that the person carries a deadly weapon or other dangerous object is presumed to have a possibility of being used for a crime under the same Act (negative) / The prosecutor bears the burden of proving that the defendant carried a deadly weapon or other dangerous object that is likely to be used for a crime under the same Act (=the prosecutor)

[1] As to the provision of partial aggravated punishment of the Act on the Aggravated Punishment, etc. of Specific Crimes, the Constitutional Court ruled that the statutory punishment is unconstitutional on the ground that the provision of the same provision as that of the Framework Act on the Aggravated Punishment, etc. of Specific Crimes goes against the legitimacy and balance of the penal system, thereby violating the basic principles of the Constitution, and thus violating the principle of equality. On September 24, 2015, the Criminal Act was amended by carrying a deadly weapon or other dangerous articles and by Act No. 7891, Mar. 24, 2006; Article 3(1) of the former Punishment of Violence, etc. Act (amended by Act No. 12896, Dec. 30, 2014); Article 260(1) and Article 283(1)(Intimidation) and Article 366(1) of the same Act (amended by Act No. 12816, Mar. 16, 2014) of the Act on the Punishment of Violence, etc.

The Act on the Punishment of Violences, etc. (hereinafter “Assault Punishment Act”) was partially amended on January 6, 2016 to amend Article 13718 of the Act on the Punishment of Violences, etc. (hereinafter “the same Act”) which provides for the aggravated punishment of habitual assault crimes, such as habitual assault, and Article 3(1) and (3) of the former Punishment of Violence Act, which provides for the aggravated punishment of special violence crimes such as habitual assault, are deleted. Accordingly, following such deletion, Article 2(2), (3), and (4) of the former Punishment of Violence Act, which provides for the aggravated punishment provisions of joint violence crimes and the aggravated punishment provisions of repeated crimes, were amended, and thereby, the existing group, habitual assault, and special violence crimes, etc. are only applicable under the Framework Act, and thus, cannot be punished under the Punishment of Violences Act.

In addition, Article 7 of the Punishment of Violences Act provides that "any person who carries, provides or arranges any deadly weapons or other dangerous articles that are likely to be used for a crime under this Act without justifiable grounds shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding three million won, by punishing any person who is likely to commit a crime of collective or habitual or special violence, etc., thereby maintaining public peace and order without substantial changes from the time of the enactment of the Act. The crime of violation of the Punishment of Violences Act carries the character as a preliminary crime of "crime under this Act", which is a crime subject to the crime.

In full view of the general legal principles as to the interpretation of the penal provisions and the background and contents of the amendment of the Punishment of Violences Act, the legislative intent and the text of Article 7 of the Punishment of Violences Act, the structure of language and text, the nature of the crime of violation of the Punishment of Violences Act and the requirements for establishment, etc., it is reasonable to interpret the term "crimes prescribed by this Act" as only "crimes prescribed by the Punishment of Violences Act" under Article 7 of

[2] The "Carrying of dangerous objects" under Article 7 of the Punishment of Violences, etc. Act refers to carrying the dangerous objects under the intent to use them at the scene of the crime. If a person carries a deadly weapon that is likely to be public use in the crime under the Punishment of Violences Act without any justifiable reason, the act of carrying with him/her, even though there is no other specific criminal act, it cannot be deemed that the possession of a deadly weapon or other dangerous objects is likely to be public use in the crime under the Punishment of Violences Act. Furthermore, the burden of proof on the facts constituting the elements of the crime charged in a criminal trial is borne by the prosecutor. Accordingly, the prosecutor must prove that the defendant carries a deadly weapon or other dangerous objects that are likely to be public use in the crime under the Punishment of Violences Act.

[1] Article 12(1) of the Constitution of the Republic of Korea; Articles 1(1), 260(1), 283(1), and 366 of the Criminal Act; Articles 3(1) and (3) of the former Punishment of Violences, etc. Act (Amended by Act No. 12896, Dec. 30, 2014); Articles 2(1) and (2), (3), 3(1) and (4) of the former Punishment of Violences, etc. Act (Amended by Act No. 13718, Jan. 6, 2016); Article 7 of the Punishment of Violences, etc. Act / [2] Article 7 of the Punishment of Violences, etc. Act; Article 308 of the Criminal Procedure Act

[1] Constitutional Court en banc Decision 2014Hun-Ba154, 398, 2015Hun-Ga3, 9, 14, 18, 2018, 2015Hun-Ga3, 228, 20, 21, and 25 (Hun-Ga28, 1415) / [2] Supreme Court Decision 83Do1323 Decided September 13, 1983 (Gong1983, 1540), Supreme Court Decision 92Do381 Decided May 12, 1992 (Gong192, 1921), Supreme Court Decision 205Do3875 Decided April 14, 1998, Supreme Court Decision 2005Do3875 Decided August 25, 2005)

Defendant

Defendant

Seoul Eastern District Court Decision 2016No1373 decided April 28, 2017

The judgment of the court below is reversed, and the case is remanded to the Seoul Eastern District Court Panel Division.

Judgment ex officio is made.

1. A. The principle of no punishment without the law requires that a crime and punishment shall be prescribed by law in order to protect an individual’s freedom and rights from the arbitrary exercise of the State’s penal authority. In light of such purport, the interpretation of penal provisions shall be strict, and an excessively expanded interpretation or analogical interpretation of the meaning of the express penal provisions in the direction unfavorable to the defendant is not allowed as it is contrary to the principle of no punishment without the law (see, e.g., Supreme Court Decisions 201Do7725, Aug. 25, 201; 2012Do4230, Nov. 28, 2013).

B. In the past, the Constitutional Court ruled that the provision on partial aggravated punishment of the Act on the Aggravated Punishment, etc. of Specific Crimes increases the statutory penalty only because it violates the fundamental principles of the Constitution by losing the legitimacy and balance of the penal system, and violates the principle of equality. On September 24, 2015, the Criminal Act was amended by carrying a deadly weapon or other dangerous articles and by Act No. 7891, Mar. 24, 2006; Article 3(1) of the former Punishment of Violences, etc. Act (amended by Act No. 12896, Dec. 30, 2014); Article 260(1)(Intimidation), Article 283(1)(Intimidation), and Article 36(1)5 of the same Act (amended by Act No. 12896, Dec. 16, 2014); Article 260(1)(2)1 of the former Punishment of Violence, etc. Act (amended by Act No. 12894, Mar. 16, 2016)

The Act on the Punishment of Violences, etc. (hereinafter “Assault Punishment Act”) was partially amended on January 6, 2016 in order to amend Article 2(1) of the former Punishment of Violence Act and Article 3(1) and (3) of the former Punishment of Violence Act, which provide for the aggravated punishment of habitual violence crimes, such as habitual violence, are deleted. Accordingly, following such deletion, Article 2(2), (3), and (4) of the former Punishment of Violence Act, which provides for the aggravated punishment of special violence crimes such as habitual violence, was amended, and thereby, Article 2(2), (3), and (4) of the same Act, which provides for the aggravated punishment of joint violence crimes and for the aggravated punishment of repeated crimes, became null and void.

In addition, Article 7 of the Punishment of Violences Act provides that "any person who carries, provides or arranges any deadly weapons or other dangerous articles that are likely to be used for a crime under this Act without justifiable grounds shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding three million won, by punishing any person who is likely to commit a crime of collective or habitual or special violence, etc., thereby maintaining public peace and order without substantial changes from the time of the enactment of the Act. The crime of violation of the Punishment of Violences Act carries the character as a preliminary crime of "crime under this Act", which is a crime subject to the crime.

C. In full view of the general legal principles on the interpretation of the penal provisions and the background and contents of the amendment of the Punishment of Violences Act, the legislative intent and the structure of language under Article 7 of the Punishment of Violences Act, the nature and requirements for establishment of the crime of violating the Punishment of Violences Act, etc., it is reasonable to interpret the term “crimes stipulated in this Act” under Article 7 of the Punishment of Violences Act as only the term “crimes stipulated in the Punishment of Violences Act”.

D. Meanwhile, “Carrying” of a dangerous object as referred to in Article 7 of the Punishment of Violences Act refers to carrying a dangerous object under the intent of using it at the scene of a crime (see, e.g., Supreme Court Decision 92Do381, May 12, 1992). If a dangerous weapon that is likely to be used for a crime under the Punishment of Violences Act was carried with a deadly weapon that is likely to be used without any justifiable reason, even if there is no other specific criminal act, the act of carrying with himself meets the constituent elements of the crime of violation of the Punishment of Violences Act (see, e.g., Supreme Court Decisions 2005Do3875, Aug. 25, 2005; 2007Do2439, Jun. 28, 2007); the prosecutor bears a deadly weapon or other dangerous object, and thus, it cannot be presumed that the criminal defendant might be used for a crime under the Punishment of Violences Act (see, e.g., Supreme Court Decision 98Do31983., Mar. 198, 198.

2. Of the facts charged in the instant case, the summary of the violation of the Punishment of Violences Act (hereinafter “offenders”) (hereinafter “instant charges”) is as follows: (a) around 12:20 on June 14, 2016, the Defendant intending to take the knife the knife used by the Nonindicted Party and carried the knife of the knife as one’s own house, which is a dangerous thing (22 cm in the knife length) and carried the dangerous thing without good cause.

3. A. The record reveals the following circumstances.

(1) The prosecutor prosecuted this part of the facts charged on the ground that it falls under Article 7 of the Punishment of Violences Act. However, this part of the facts charged does not state any indication as to whether the Defendant carried excessive personal effects for any crime under the Punishment of Violences Act.

(2) Although the fact that the Defendant had excessive possession from the investigative agency to the court of the court below was recognized, no statement was made as to whether the Defendant had excessive possession of the intent to use for any crime under the Punishment of Violences Act.

(3) Although the Defendant had excessive possession and possession of it at his own house immediately after pointing out the Nonindicted Party, it does not seem that the Defendant had the intent to actually commit the crime as prescribed by the Punishment of Violences Act at the time, and the Defendant has no record of punishing the Defendant to commit the crime as prescribed by the current Punishment of Violences Act in the past.

B. Examining these circumstances in light of the aforementioned legal principles, the evidence presented by the prosecutor alone cannot be deemed to have been proven without any reasonable doubt that the Defendant carried a dangerous object that could be commonly used for a crime under the Punishment of Violences Act without justifiable grounds. Even if the Defendant possessed excessive possession of the intent to use for a violent crime under the Criminal Act at the time, such crime cannot be deemed as a crime under Article 7 of the Punishment of Violences Act, since it cannot be the “crime under this Act” pursuant to the amendment of the Act on January 6, 2016, and thus, the Defendant cannot be punished as a crime under Article 7 of the Punishment of Violences Act.

4. Nevertheless, the lower court found the Defendant guilty of this part of the facts charged on its grounds as stated in its reasoning. In so doing, it erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the interpretation of Article 7 of the Punishment of Violences Act and the legal doctrine on the elements of a crime of violating the Punishment of Violences Act (a person who is a

5. Therefore, without examining the grounds of appeal, the judgment of the court below is reversed, and 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.

Justices Kim Shin (Presiding Justice)