[1] The scope of the legislative formation right concerning the types and scope of statutory penalty

[2] Whether the part of Article 2 (2) of the Punishment of Violences, etc. Act, in the event that an offense provided for in Articles 257 (1) and 366 of the Criminal Act is committed jointly by two or more persons, the part of the provision that an aggravated punishment by up to one half of the punishment provided for in the respective Articles of the Criminal Act is in violation of the Constitution (negative)

[1] Articles 10, 11, and 37 (2) of the Constitution / [2] Article 2 (2) of the Punishment of Violences, etc. Act, Articles 10, 11, and 37 (2) of the Constitution

[1] Constitutional Court en banc Order 2001Hun-Ga16 decided Nov. 29, 2001 (Hun-Gong63, 1115) en banc Order 2005Hun-Ga2 decided Apr. 27, 2006 (Hun-Gong115, 613)

Defendant

Defendant

Attorney Kim Jong-ho

High Court for Armed Forces Decision 2005No49 Decided July 12, 2005

The appeal is dismissed.

The defendant and public defender's grounds of appeal are also examined.

1. Examining the evidence adopted by the court below in light of the records, the court below's decision to the same purport is just, and there is no error in the misapprehension of the rules of evidence or misconception of facts against the rules of evidence as otherwise alleged in the ground of appeal.

2. Article 2(2) of the Punishment of Violences, etc. Act prior to the amendment (amended by Act No. 7891 of Mar. 24, 2006), where a person commits any of the crimes under Article 257(1) of the Criminal Act and Article 366 of the Criminal Act at night, the provision on the increase of up to 1/2 of the punishment prescribed in the respective Articles of the Criminal Act was deleted and repealed under Article 2(2) of the Punishment of Violences, etc. Act (amended by Act No. 7891 of Mar. 24, 2006).

However, pursuant to Article 1(2) of the Criminal Act, where the act does not constitute a crime due to the amendment of the law after the crime, the law applicable to this case is not a provision prior to the amendment of March 24, 2006. As such, the repealed provision was not a law applicable to this case’s trial, and therefore, there is no room for accepting the unconstitutionality of the repealed provision.

On the other hand, the issue of how to punish a certain crime is how to determine the type and scope of statutory penalty not only takes into account the nature of the crime and the legal interest to be protected, but also various elements such as our history and culture, the times situation at the time of legislation, the general public’s sentiment or legal sentiment, and criminal policy aspects for preventing crimes. Therefore, a broad range of legislative discretion or freedom of formation should be recognized as a matter of determination by legislators, by comprehensively taking into account the following factors. Therefore, as a statutory penalty for a certain crime is too harsh compared to the nature of the crime and the responsibility of the offender following it, it shall not be readily concluded that the statutory penalty for the crime is against the principle of equality and the principle of proportionality under the Constitution, except where it is clearly contrary to the principle of equality under the Constitution, such as where the statutory penalty for the crime is committed, or where it deviates from the degree necessary to achieve the original purpose and function of the punishment for the crime, and where it is insufficient to prevent and resolve a certain crime in accordance with legislative policy consideration, the Constitutional Court en banc Decision 2010Hun-Ga2160.

In light of the above legal principles, the part of Article 2 (2) of the Punishment of Violences, etc., which applies to the crime of this case where two or more persons jointly commit the crime of this case under Article 257 (1) of the Criminal Act and Article 366 of the Criminal Act, which provides that a half of the punishment under each of the above Articles of the Criminal Act shall be aggravated (Article 2 (2) of the Punishment of Violences, etc., which was amended and enforced by Act No. 7891 of March 24, 2006, Article 2 (2) of the Act on the Punishment of Violences, etc., which was amended and enforced by Act No. 7891 of March 24, 2006, "even though two or more persons jointly commit the crime of this case," the part of the damage and injury during the crime of this case was deleted at night, there is no change in the part of "joint", and still amended by Act No. 2 (2) of the Punishment of Violences, etc., which is still inconsistent with the principle of proportionality between punishment and the principle of equality.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)