The order of the reduction of increase and exemption under Article 2 (4) of the Addenda to the Criminal Act

When, in comparing and reducing the seriousness of punishment in the new and old Criminal Act, if the punishment is to be aggravated or mitigated, it shall be compared after an aggravated or mitigated punishment has been imposed.

Articles 2(4) and 3 of the Addenda to the Criminal Act; Article 1(2) of the Criminal Act

Prosecutor

Defendant 1 and four others

The support for the propagation of the first instance, the second instance Gwangju High Court, etc.

In order to compare the severity of the written judgment ex officio, if there is a reason to add or reduce the aggravated or mitigated punishment, the aggravated or mitigated punishment should first be determined after the year of choosing the punishment, and the severity of the two punishment should be determined by comparing it (if there is a reason to add or reduce the aggravated or mitigated punishment after the first choice of the punishment), and according to the today's original judgment, the court below failed to choose even though there is a punishment selected by each of the former Criminal Law in comparison with the former Criminal Law in regard to each murder according to the judgment of the defendant, etc., and the judgment of the defendant, etc. should not increase the severity of the punishment according to the former Criminal Law Article 37 (1) (2) of the same Act, and if there is a vehicle with the gravity of the punishment as a result of comparison, the court below adopted Article 55 of the former Criminal Act when comparing the punishment after applying Article 3 of the Addenda of the same Act and adopted Article 2 (4) of the Addenda of the same Act, which is the case of applying the so-called punishment by mistake as a law under Article 3 (2) of the same Act.

Justices White-sung (Presiding Justice) (Presiding Justice)