[1] The method of interpreting penal provisions

[2] The meaning of “Acts and subordinate statutes” under Article 10 subparag. 1 of the former Control of Firearms, Swords, Explosives, etc. Act and Article 15 subparag. 4 of the Enforcement Decree of the same Act (excluding the former Act on the Control of Firearms, Swords, Explosives, Etc.)

[1] Penal provisions shall be strictly interpreted and applied in accordance with the language and text, and they shall not be excessively expanded or analogically interpreted in the direction unfavorable to the defendant. However, a systematic and logical interpretation that clearly expresses the logical meaning of the language and text in accordance with the legal systematic relationship that takes into account the legislative purpose and purpose of the relevant provision within the meaning of the possible language is to make the most accessible interpretation to the essential contents of the provision, and is in accord with the principle of no punishment without the law.

[2] Article 10 of the former Control of Firearms, Swords, Explosives, etc. Act (amended by Act No. 12960, Jan. 6, 2015; hereinafter “former Control of Firearms Act”) provides that where a person may possess explosives, etc. without permission and subparagraph 1 provides that “where a person possesses explosives, etc. on duty according to the Acts and subordinate statutes” in subparagraphs 2 through 9 of the former Control of Firearms Act includes cases where a person who has obtained permission for export and import of explosives, etc. under subparagraphs 2 through 9 of the same Article, and his/her employees are possessed. However, the interpretation of Article 10 subparag. 1 of the former Control of Firearms Act includes the former Control of Firearms Act, which provides for “where a person possesses explosives, etc. on duty” under subparagraphs 2 through 9 of the former Control of Firearms Act and Article 10 subparag. 10 of the former Control of Firearms Act does not mean cases where a person carries explosives, etc. on duty pursuant to subparagraphs 1 and 1 of the former Control of Firearms Act.”

Article 12 of the former Guns and Powders Control Act (wholly amended by Act No. 3354, Jan. 10, 1981; hereinafter the same) provides that manufacturers, dealers, exporters, importers, and persons designated by Presidential Decree as not required to obtain permission, etc. Upon delegation from the above provision, Article 41 of the Enforcement Decree of the same Act (wholly amended by Presidential Decree No. 4702, Mar. 4, 1970) provides that "a person who can possess powders without permission" under Article 12 subparagraph 6 of the same Act refers to "a person who can possess powders on duty pursuant to the provisions of Acts" and Article 43 subparagraph 4 of the same Act provides that "when a person prescribed in Article 41 uses powders in possession of him/her" can use powders without permission for use.

However, as the former Guns and Swords Control Act (amended by Presidential Decree No. 10618, Nov. 6, 1981) was wholly amended by Act No. 3354, Jan. 10, 1981, Article 41 of the Enforcement Decree of the former Guns and Swords Control Act (wholly amended by Act No. 39, Mar. 4, 1970) directly stipulates that “a person who possesses explosives on duty pursuant to the provisions of the Acts and subordinate statutes” shall be “a person who possesses guns, swords, or explosives on duty” under Article 10 subparag. 1 of the said Act, and Article 21 subparag. 4 of the former Guns, Swords, and Explosives Control Act (wholly amended by Presidential Decree No. 10618, Nov. 6, 1981) directly provided that “a person who possesses explosives on duty” as a person who is able to use explosives without permission for use.

In light of the history of the amendment of the former Guns and Powders Control Act and the Enforcement Decree thereof, it is evident that Article 10 subparag. 1 of the former Guns and Swords, Swords, Explosives, etc. Control Act (amended by Presidential Decree No. 26858, Jan. 6, 2016; hereinafter “Enforcement Decree”) and Article 15 subparag. 4 of the former Guns, Swords, Explosives, etc. Control Act have derived from the same language and text. Thus, the “Acts and subordinate statutes” under Article 15 subparag. 4 of the Enforcement Decree is just to interpret other Acts and subordinate statutes, as in Article 10 subparag. 1 of the former Guns and Powders Control Act, rather than the former Knives Control Act.

In contrast, if Article 15 subparagraph 4 of the Enforcement Decree of the former Act provides that "the Act includes the former Act on the Control of Total Inspection," a manufacturer, a distributor (paragraph 2), an exporter and importer (paragraph 6), a transferee (paragraph 8), and his/her employees (paragraph 9) who can possess explosives without permission pursuant to Article 10 of the former Act on the Control of Total Inspection, shall not be punished at all times without permission for use. In particular, "a person who may not obtain permission for use pursuant to the proviso to Article 18 (1) (paragraph 7)" can possess explosives without permission, and such a person falls under a person who may use explosives without permission pursuant to Article 15 subparagraph 4 of the Enforcement Decree, and thus, falls under a person who may use explosives without permission, and thus, falls under the error of circular theory.

If the meaning of the language and text of Article 15 subparag. 4 of the Enforcement Decree is interpreted in a systematic and logical manner in consideration of the contents and stay, history of the amendment, legislative intent and purpose of each provision, etc., it is reasonable to interpret that the case where a person may possess explosives without permission pursuant to Article 10 subparag. 2 through 9 of the former Act is not included in “a person who may possess explosives on duty by law” as stipulated in Article 15 subparag. 4 of the Enforcement Decree.

[1] Article 12(1) of the Constitution and Article 1(1) of the Criminal Act / [2] Article 12 of the former Guns and Powders Control Act (wholly amended by Act No. 354, Jan. 10, 1981; see Article 10 of the current Guns, Swords, Explosives Control Act); Article 10 subparag. 1 of the former Guns, Swords, Explosives Control Act (amended by Act No. 4154, Dec. 30, 198; see Article 10 subparag. 1 of the current Guns and Swords Control Act (see Article 40 subparag. 1 of the current Guns and Swords Control Act); Article 10 subparag. 4 of the former Guns and Swords Control Act (wholly amended by Act No. 12960, Jan. 6, 2015; see Article 10 subparag. 17 of the current Guns and Swords and Explosives Control Act); Article 10(1)5 of the former Guns and Powders Control Act (see Article 78(10(1)

[1] Supreme Court Decision 2007Do2162 decided Jun. 14, 2007 (Gong2007Ha, 1118)

Defendant 1 and three others

Defendant 1, Defendant 2, Defendant 4, and Prosecutor (Defendant 1, Defendant 2, and Defendant 3)

Attorney Seo Young-young et al.

Changwon District Court Decision 2016No1872, 1880, 1894, 3110 decided June 15, 2017

The part of the lower judgment against Defendant 1, Defendant 2, and Defendant 3 is reversed, and that part of the case is remanded to the Changwon District Court. Defendant 4’s appeal is dismissed.

The grounds of appeal are examined.

1. As to the grounds of appeal by Defendants 1, 2, and 4

Examining the reasoning of the lower judgment in light of the evidence duly admitted, it is justifiable for the lower court to have determined that the instant facts charged against Defendants 1, 2, and 4 (excluding the part of innocence against Defendants 1 and 2) were guilty on the grounds indicated in its reasoning. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on Articles 4(1), 24(1), and 31(1) of the former Control of Firearms, Swords, Explosives, etc. Act (amended by Act No. 12960, Jan. 6, 2015; hereinafter “former Control of Firearms”), contrary to what is alleged in the grounds of appeal.

2. As to the Prosecutor’s ground of appeal

A. Summary of the facts charged in the judgment of the court below

Defendant 1 is the representative director of Defendant 2 Co., Ltd. (hereinafter “Defendant Co., Ltd.”) for the purpose of manufacturing and selling chemical carbon in Kimhae-si ( Address 1 omitted), and Defendant 3 is the chief development officer of the above company. Defendant 1 and Defendant 3 did not obtain permission to use powders from the chief of the police station having jurisdiction over the place where explosives are used, although Defendant 1 and Defendant 3 obtained permission to use powders.

(1) On January 1, 2012, Defendant 1: (a) emitted tear gas produced by Defendant Company from gas guns at the Yak-gu ( Address 2 omitted); (b) launch of two kinds of tear gas guns and different pots produced by Defendant Company into gas guns at the Yak-si ( Address 3 omitted); and (c) blasting of DK-600 bits ( Address 4 omitted) at the Y-gu storage area around 14:00 on August 13, 2013.

(2) On March 2012, Defendant 1 and Defendant 3 conspired with the Defendant 1 and Defendant 3: (a) projected with one string of DaK-44 (6Bang), which is a large string for the suppression of demonstration, in the Nakdong River located in the Gyeong-si ( Address 5 omitted); and (b) projected with a string of dK-38S5 mar for the suppression of demonstration, which is located in the ( Address 6 omitted) adjacent to the Nakdong River located in the ( Address 6 omitted), and burned the detonating fuses by attaching fire.

(3) Defendant Company, its representative, Defendant 1 and Defendant 3, an employee, committed the above-mentioned violation with respect to the business of the said Company.

B. The judgment of the court below

In light of the fact that Article 15 subparag. 4 of the former Enforcement Decree of the Inspection Control Act (amended by Presidential Decree No. 26858, Jan. 6, 2016; hereinafter “Enforcement Decree”) provides that “a person who, without permission for use, can possess explosives for official duties pursuant to the Acts and subordinate statutes” pursuant to the delegation of the proviso of Article 18(1) of the same Act (amended by Presidential Decree No. 26858, Jan. 6, 2016; 2. Defendant 1 and Defendant 3 constitute a manufacturer and his/her employee as prescribed in subparagraphs 2 and 9 of Article 10 of the former Inspection Control Act; 3. A person who can possess explosives for official duties,” under Article 15 subparag. 4 of the Enforcement Decree of the former Inspection Control Act (amended by Presidential Decree No. 26858, Jan. 6, 2016; hereinafter “Enforcement Decree”), the lower court reversed the judgment of the first instance judgment convicting the above manufacturer and his/her employees pursuant to the former Inspection Control Act.

C. Judgment of the Supreme Court

(1) Penal provisions shall be strictly interpreted and applied in accordance with the language and text, and they shall not be excessively expanded or analogically interpreted in the direction unfavorable to the defendant. However, the method of systematic and logical interpretation that clearly expresses the logical meaning of the language and text in accordance with the legal systematic relationship that takes into account the legislative purpose and purpose of the relevant provision within the meaning of possible language is to make the most accessible interpretation to the essential contents of the provision, and is in compliance with the principle of no punishment without law (see Supreme Court Decision 2007Do2162, Jun. 14, 2007, etc.).

(2) Article 18(1) of the former Inspection and Control Act provides, “Any person who intends to blast or burn powders shall obtain permission for the use of powders from the chief of the police station having jurisdiction over the place where the powders are used under the conditions as prescribed by the Ordinance of the Ministry of Government Administration and Home Affairs,” and the proviso provides, “The same shall not apply to a person who mines minerals under the Mining Industry Act and other persons prescribed by the Presidential Decree.” Accordingly, Article 15(1) of the Enforcement Decree provides, “a person who may use powders without permission for the use under subparagraph 4 of Article 15 refers to a person who

Meanwhile, Article 10 of the former Inspection and Control of Firearms Act provides that “No person shall possess guns, swords, explosives, gas sprayers, electroshock weapons, or crossbows (hereinafter “ powders, etc.”) without permission except for the cases falling under any of the following subparagraphs, and where he/she may possess them without permission; “where he/she possesses powders, etc. on duty pursuant to Acts and subordinate statutes (Article 4(1) or (2)”; “where a manufacturer under the provisions of Article 4(1) or (2) possesses powders, etc. manufactured by him/her (Article 6(1)(Article 6(4)(Article 6(1)(Article 9(1) or (2)(Article 18(1)(including subparagraph 6)”; “a person who has obtained permission to export and import explosives, etc. pursuant to the provisions of Article 18(1)(Article 18(1)(Article 18(2)(Article 18(1)(the proviso)(Article 18(2))(the proviso)(Article 18(2)(1)(1)(the proviso))

(3) First, we examine the stay of each provision of the former Inspection Control Act and the Enforcement Decree thereof.

Article 10 of the former Gross Inspection Control Act provides that “a person who possesses explosives, etc. on duty pursuant to Acts and subordinate statutes” in subparagraph 1 provides that “a person who possesses explosives, etc. on duty” and that person who has obtained permission for export and import of explosives, etc. under subparagraphs 2 through 9 of the same Article refers to cases where a person who has obtained permission for import and export of explosives, etc. is possessed by the former Gross Inspection Control Act. However, when interpreting Article 10 subparag. 1 of the former Gross Inspection Control Act includes the former Gross Inspection Control Act, a person who possesses explosives, etc. on duty pursuant to each provision of subparagraphs 2 through 9 of the former Gross Inspection Control Act constitutes “a person who possesses explosives, etc. on duty pursuant to Acts and subordinate statutes” under subparagraphs 1 and 9 of the same Article. Therefore, the term “Acts and subordinate statutes” under Article 10 subparag. 1 of the former Gross Inspection Control Act refers to cases where a person carries explosives, etc. on duty pursuant to subparagraphs 2 through 9 of the same Article.

Then, this article examines the amendment history of the former Act and the Enforcement Decree thereof.

Article 12 of the former Guns and Powders Control Act (wholly amended by Act No. 3354, Jan. 10, 1981; hereinafter the same) provides that manufacturers, dealers, exporters, importers, and persons designated by Presidential Decree as not required to obtain permission, etc. Upon delegation from the above provision, Article 41 of the Enforcement Decree of the same Act (wholly amended by Presidential Decree No. 4702, Mar. 4, 1970) provides that "a person who can possess powders without permission" under Article 12 subparagraph 6 of the same Act refers to "a person who can possess powders on duty pursuant to the provisions of Acts" and Article 43 subparagraph 4 of the same Act provides that "when a person prescribed in Article 41 uses powders in possession of him/her" can use powders without permission for use.

However, as the former Guns and Swords Control Act (amended by Presidential Decree No. 10618, Nov. 6, 1981) was wholly amended by Act No. 3354, Jan. 10, 1981, Article 41 of the Enforcement Decree of the former Guns and Swords Control Act (wholly amended by Act No. 39, Mar. 4, 1970) directly stipulates that “a person who possesses explosives on duty pursuant to the provisions of the Acts and subordinate statutes” shall be “a person who possesses guns, swords, or explosives on duty” under Article 10 subparag. 1 of the said Act, and Article 21 subparag. 4 of the former Guns, Swords, and Explosives Control Act (wholly amended by Presidential Decree No. 10618, Nov. 6, 1981) directly provided that “a person who possesses explosives on duty” as a person who is able to use explosives without permission for use.

In light of the history of the amendment of the former Guns and Powders Control Act and the Enforcement Decree, it is evident that Article 10 subparag. 1 of the former Guns and Powders Control Act and Article 15 subparag. 4 of the Enforcement Decree have arisen from the original same language and text. Thus, it is reasonable to interpret the “Acts and subordinate statutes” under Article 15 subparag. 4 of the Enforcement Decree as in Article 10 subparag. 1 of the former Guns and Powders Control Act as in other Acts and subordinate statutes, not the former Guns and Powders Control Act.

In contrast, if Article 15 subparagraph 4 of the Enforcement Decree of the former Act provides that "the Act includes the former Act on the Control of Total Inspection," a manufacturer, a distributor (paragraph 2), an exporter and importer (paragraph 6), a transferee (paragraph 8), and his/her employees (paragraph 9) who can possess explosives without permission pursuant to Article 10 of the former Act on the Control of Total Inspection, shall not be punished at all times without permission for use. In particular, "a person who may not obtain permission for use pursuant to the proviso to Article 18 (1) (paragraph 7)" can possess explosives without permission, and such a person falls under a person who may use explosives without permission pursuant to Article 15 subparagraph 4 of the Enforcement Decree, and thus, falls under a person who may use explosives without permission, and thus, falls under the error of circular theory.

If the meaning of the language and text of Article 15 subparag. 4 of the Enforcement Decree is interpreted in a systematic and logical manner in consideration of the contents and stay, history of the amendment, legislative intent and purpose of each provision, etc., it is reasonable to interpret that the case where a person may possess explosives without permission pursuant to Article 10 subparag. 2 through 9 of the former Act is not included in “a person who may possess explosives on duty by law” as stipulated in Article 15 subparag. 4 of the Enforcement Decree.

(4) Nevertheless, the court below acquitted Defendant 1, Defendant 2, and Defendant 3 on the violation of the former Act on the Control of Firearms by interpreting that the case where a manufacturer under subparagraphs 2 and 9 of Article 10 of the former Act and his employees possess powders for their duties and constitutes “a person entitled to possess powders for official duties pursuant to the Acts and subordinate statutes” under Article 15 subparag. 4 of the Enforcement Decree of the same Act. Thus, the court below erred by misapprehending the legal principles on the meaning of “a person entitled to possess powders for official duties” under Article 15 subparag. 4 of the Enforcement Decree of the same Act, which affected the conclusion of the judgment. The prosecutor’s ground of appeal pointing this out is with merit.

3. Scope of reversal

For the foregoing reasons, the part of the lower judgment on Defendant 1 and Defendant 2’s acquittal against Defendant 2 and the part on Defendant 3 should be reversed. However, the part on the reversal against Defendant 1 and Defendant 2 should be sentenced to a single punishment on all of the aforementioned Defendants in relation to concurrent crimes under the former part of Article 37 of the Criminal Act with the remaining part that the lower court found guilty against the said Defendants. Accordingly, the part on Defendant 1 and Defendant 2 in the lower judgment should be reversed.

4. Conclusion

Therefore, the part of the judgment below against Defendant 1, Defendant 2, and Defendant 3 is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. Defendant 4’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)