2016Do1073 Violation of the Punishment of Violences, etc. Act (injury by Group, Deadly Weapons, etc.)

R

Defendant

Attorney AM (National Ship)

Seoul Central District Court Decision 2015No3684, 4063 (Consolidated) Decided December 24, 2015

March 24, 2016

The part of the judgment below against the defendant is reversed, and this part of the case is remanded to the Seoul Central District Court.

shall be remanded to the Department.

Judgment ex officio is made.

1. Committing a crime in the past according to the change of the ideology of the law which is the reason for enacting penal statutes;

the evaluation of the case has changed and recognized it as a crime and the punishment itself has been unfair; or

Article 1(2) of the Criminal Act where statutes have been amended or amended in light of anti-sexual records that excessive punishment has been imposed.

Pursuant to the foregoing, new law shall apply (Supreme Court Decisions 2009Do12930 Decided March 11, 2010; 2009Do12930 Decided March 11, 201

See Supreme Court Decision 2013Do4862, 2013 Jeondo101 Decided July 11, 2013, etc.

2. According to the reasoning of the lower judgment, the lower court punished the former charges of violence, etc.

Punishment of Violence Act (amended by Act No. 13718, Jan. 6, 2016; hereinafter referred to as "former Punishment of Violence Act").

Articles 3(1) and 2(1)3 of the Act, Articles 257(1) and 30 of the Criminal Act shall apply.

The judgment of the first instance court which found the Defendant guilty was affirmed.

3. "Organization or group or group by force or by force under Article 3 (1) of the former Punishment of Violences Act".

A person who commits any of the crimes referred to in the subparagraphs of Article 2(1) by referring to the power of a group; or

A person who commits a crime by carrying a deadly weapon or other dangerous article shall be punished by the formula set forth in the subparagraphs of Article 2 (1).

(1) A person who habitually commits any of the following crimes shall be punished in accordance with the Act, and Article 2(1) shall be punished in accordance with the Act:

A person who has committed a crime shall be punished in accordance with the following classification. Article 257 of the Criminal Act of the Republic of Korea

Persons who have committed an offense provided for in paragraph (1) and Article 257 (2) of the Criminal Act shall be punished by not less than three years.

The Act was amended and enforced by Act No. 13718 on January 6, 2016.

Article 3 (1) of the Punishment of Violences, etc. Act shall be deleted, and Act No. 13719 of the same day.

Article 258-2 (Special Bodily Injury) is newly established in the Criminal Code amended and enforced by the court, and the term "organization or organization" in paragraph (1) is

The crimes of Article 257 (1) or (2) through the threat of multiple force or by carrying a dangerous weapon.

When committing a crime, "a person shall be punished by imprisonment with prison labor for not less than one year but not more than ten years."

As such, the former Punishment of Violence defined the aggravated elements of Article 257(1) of the Criminal Act

In lieu of deletion of Article 3 (1) of the Punishment Act, the same constituent element is newly established in Article 258-2 (1) of the Criminal Act.

The statutory penalty is defined to be lower than that of Article 3(1) of the former Punishment of Violences Act.

Considering the general risk of the constituent elements of an individual crime, the circumstances and circumstances of the individual crime;

Although the form of conduct and the degree of infringement of legal interests are very diverse, three years uniformly;

(1) The previous penal provisions are too important to punish a person for a limited term.

It should be viewed as a anti-sexual measure. Therefore, the change of law after a crime referred to in Article 1(2) of the Criminal Code is changed.

When a sentence is more severe than that of the old law by competition.

Thus, as to the facts charged of this case, Article 1 (2) of the Criminal Code, the width of the corporation at the time of the act

As Article 258-2(1) of the Criminal Code of the new corporation, the punishment cannot be aggravated by the provision of the Act on the Punishment of Forceful Acts;

Since punishment can only be imposed, the judgment of the court below premised on the application of the provisions of the former Punishment of Violences Act.

No longer can no longer be maintained.

4. Therefore, without further proceeding to decide on the grounds of appeal by the assent of all participating Justices.

The part of the judgment against the defendant in the judgment of the court is reversed, and this part of the case is tried and judged again.

The case shall be remanded to the appellate court, and it is so decided as per Disposition.

Justices Kim In-bok

Justices Park Jae-hee in charge

Justices Park Young-young

Justices Kim Jong-il