In a case where the first instance court and the lower court found the Defendant guilty on the charges of habitual acquisition of stolen goods by applying Article 5-4(4) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 363 and 362(1) of the Criminal Act, the case holding that the Defendant’s case constitutes a case where the Defendant’s case is not committed a crime, since the Constitutional Court rendered a decision that Article 362(1) of the Criminal Act among Article 363(4) of the Act on the Aggravated Punishment, etc. of Specific Crimes violates the Constitution after the sentence of the lower court rendered a decision that the part on “acquisition” under

Article 5-4(4) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 362(1) and 363 of the Criminal Act, Article 47(3) of the Constitutional Court Act, Article 325 of the Criminal Procedure Act

Constitutional Court en banc Order 2014Hun-Ga16, 19, and 23 en banc Decision (Hun-Gong221, 346) Decided February 26, 2015

Defendant

Defendant

Attorney Jeon Soo-soo

Incheon District Court Decision 2014No1986 decided August 27, 2014

The part of the judgment of the court below against the defendant is reversed, and that part of the case is remanded to the Incheon District Court Panel Division.

Judgment ex officio is made.

The lower court upheld the first instance judgment convicting the Defendant by applying Article 5-4(4) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Specific Crimes Aggravated Punishment Act”), and Articles 363 and 362(1) of the Criminal Act, as it is, on the facts charged, that “the Defendant habitually acquired stolen goods by providing and purchasing KRW 53,60,00 in total with the knowledge that he/she was the stolen goods at least 21 times from January 20, 2014 to March 21 of the same year.”

However, in Article 5-4(4) of the Specific Crimes Aggravated Punishment Act (amended by Act No. 10210, Mar. 31, 2010), which applies to the facts charged of habitual acquisition of stolen goods by the Defendant on February 26, 2015, the Constitutional Court rendered a decision that Article 362(1) of the Criminal Act concerning “acquisition” (hereinafter “the legal provision of this case”) shall be unconstitutional (see Constitutional Court Decision 2014HunGa16, 19, 23 (merger) Decided February 26, 2015). As such, the legal provision of this case retroactively lost its effect pursuant to the main sentence of Article 47(3) of the Constitutional Court Act.

As such, in a case where the penal law or the legal provision becomes retroactively null and void due to the decision of unconstitutionality, the defendant's case which was prosecuted by applying the pertinent provision shall be deemed to constitute a crime (see Supreme Court Decisions 91Do2825, May 8, 1992; 2004Do9037, April 15, 2005, etc.) and the part of the judgment of the court below against the defendant cannot be maintained.

Therefore, without further proceeding to decide on the grounds of appeal, the part of the judgment below against the defendant is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)