[1] The scope of application of Article 1(2) of the Criminal Act

[2] The case holding that Article 79 (Desertion of the Military Criminal Act) of the former Military Criminal Act, which only prescribed a statutory penalty and imprisonment without prison labor, was amended after the judgment of the court below and added a fine, constitutes "when the punishment is more severe than the former Act due to the amendment of the Act after the crime"

[1] In a case where the evaluation of the past acts deemed a crime according to the changes in the legal ideology that served as the reason for the enactment of penal statutes has changed, and the evaluation has been recognized and punished as a crime itself, or where the statute was amended or amended in light of the anti-discrimination that the punishment was excessive, the new law shall be applied in accordance with Article 1(2) of the Criminal Act.

[2] The case holding that Article 79 of the former Military Criminal Act (amended by Act No. 9820 of Nov. 2, 2009) provides that "a person who temporarily leaves a place of service or designated place without permission or fails to reach a designated place within a given time shall be punished by imprisonment with or without prison labor for not more than one year, but Article 79 of the Military Criminal Act, which was enforced after the sentence of the judgment below, provides that "a person who temporarily deserts away from a place of service or designated place without permission or fails to reach a designated place by the designated time shall be punished by imprisonment with or without prison labor for not more than one year, or by a fine not exceeding three million won" was added as a statutory penalty, although the form and motive of escaping from unauthorized permission are different, it shall be deemed that the previous measure, which had been punished by imprisonment with or without prison labor for a minor crime, is excessive, and thus, this constitutes "when punishment is more severe than that of the former Act" under Article 1 (2) of the Criminal Act.

[1] Article 1(2) of the Criminal Act / [2] Article 1(2) of the Criminal Act; Article 79 of the former Military Criminal Act (amended by Act No. 9820, Nov. 2, 2009); Article 79 of the Military Criminal Act

[1] Supreme Court Decision 2003Do2770 decided Oct. 10, 2003 (Gong2003Ha, 2211) Supreme Court Decision 2005Do747 decided Dec. 23, 2005 (Gong2006Sang, 205)

Defendant

Defendant

Attorney Kim Sang-won

High Court for Armed Forces Decision 2009No96 Decided November 6, 2009

The conviction part of the judgment of the court below shall be reversed, and that part of the case shall be remanded to the High Military Court.

The grounds of appeal by the defendant and the public defender are also examined.

In a case where the evaluation of acts deemed to have been committed as a crime in the past according to the change of the legal ideology which was the reason for the enactment of penal statutes has changed, and the evaluation thereof has been recognized and punished as a crime itself, or where the Acts and subordinate statutes have been amended or amended from the reflective consideration that excessive punishment has been imposed, the new law should be applied in accordance with Article 1(2) of the Criminal Act (see Supreme Court Decision 2003Do2770, Oct. 10, 2003, etc.).

According to the reasoning of the judgment below, the court below found the defendant guilty by applying Article 79 of the former Military Criminal Act (amended by Act No. 9820 of Nov. 2, 2009 and enforced from February 3, 2010 to Nov. 5, 2008; hereinafter the same shall apply) to the facts charged that the defendant temporarily left the place of service 35 times from January 22, 2007 to Nov. 5, 2008.

However, Article 79 of the former Military Criminal Act provides that "any person who fails to temporarily leave his/her place of service or designated place without permission or to arrive at a designated place within a specified time shall be punished by imprisonment with or without labor for not more than one year." However, Article 79 of the Military Criminal Act (amended by Act No. 9820 of Nov. 2, 2009 and enforced from February 3, 2010) which was enforced after the sentence of the lower judgment, provides that "any person who temporarily deserts away from his/her place of service or designated place without permission or fails to arrive at a designated place by the designated time shall be punished by imprisonment with or without labor for not more than one year or by a fine not exceeding three million won," which is added as a statutory penalty. The purport of the provision is that the previous measure, which had the nature of the crime punished by imprisonment with or without labor, is more severe than imprisonment with or without labor, shall be deemed to constitute an alteration of the former Act."

Therefore, the defendant's act of judgment cannot be punished in accordance with the provisions of the former Military Criminal Act, which is a juristic person at the time of an act, and the judgment of the court below cannot be maintained as it falls under "when there is a change in punishment after the judgment" under Article 383

Therefore, without further proceeding to decide on the remaining grounds of appeal, the guilty part of 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.

Justices Lee Hong-hoon (Presiding Justice)