(영문) 대법원 2015.12.10. 선고 2015도15934 판결

Article 1(1) of the Criminal Act shall apply to cases where punishment is significantly changed or where there is no change in punishment even after the change in law after the crime was committed. Of the facts charged in the instant case, the lower court affirmed the first instance judgment convicting the Defendant by applying Articles 3(1) and 2(1)1 of the Punishment of Violences, etc. Act and Article 260(1) of the Criminal Act with regard to the act of assaulting carrying dangerous articles around August 13, 2014 (hereinafter referred to as the “Assault Punishment Act”). However, the lower court did not err by misapprehending Article 3(1), Article 2(1)1 of the former Punishment of Violences, etc. Act (amended by Act No. 7891, Mar. 24, 2006; hereinafter referred to as the “former Punishment of Violences Act”) which was enforced at the time of the instant crime, but it did not affect the conclusion of the judgment, as it did not change Article 3(1), Article 2(1)1 and Article 26(1)1)2 of the former Punishment of Violences Act.

On September 24, 2015, the Constitutional Court rendered a decision that "the part concerning a person who commits a crime under Article 260 (1) of the Criminal Act by carrying a deadly weapon or other dangerous articles under Article 3 (1) of the former Punishment of Violences Act, and the part concerning a person who commits a crime under Article 260 (1) of the Criminal Act by carrying a deadly weapon or other dangerous body under Article 3 (1) of the Punishment of Violences Act (hereinafter "the part concerning a person who commits a crime under Article 260 (1) of the Criminal Act") shall be unconstitutional."

If so, the provision of this case is unconstitutional, pursuant to Article 47 (3) of the Constitutional Court Act.

Inasmuch as the charge of assault and assault, which was charged by the application of the instant provision, was retroactively invalidated, constitutes a crime (see, e.g., Supreme Court Decisions 2004Do9037, Apr. 15, 2005; 2014Do5433, Aug. 28, 2014) and thus, the lower judgment that found the Defendant guilty of this part of the charges became unable to maintain as it is.

Accordingly, the part of the judgment of the court below against the Punishment of Violences Act should be reversed. Since the above crime and the remaining crime of the defendant should be imposed on one of the concurrent crimes under the former part of Article 37 of the Criminal Act, the judgment of the court below should be reversed in its entirety.

Therefore, without further proceeding to decide on the remaining 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 on the bench.