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The judgment of the court below is reversed, and the case is remanded to Busan District Court Panel Division.
Reasons
Judgment ex officio is made.
1. As to the facts charged in the instant case, the lower court upheld the first instance judgment that convicted the Defendant by applying Article 2(1)3 of the former Punishment of Violences, etc. Act (amended by Act No. 13718, Jan. 6, 2016; hereinafter “former Punishment of Violences”) and Article 350(1) of the Criminal Act.
2. Article 2 (1) of the former Punishment of Violences Act shall be punished by the following persons who habitually commits any of the following offenses:
Article 2(1) of the Punishment of Violence, etc. Act (amended by Act No. 13718, Jan. 6, 2016) provides that “The Act on the Punishment of Violences, etc. (amended by Act No. 13718, Jan. 6, 2016) lists violent crimes prescribed by the Criminal Act, and stipulates the statutory penalty accordingly, but did not have any transitional provisions separately
The purpose of deletion of Article 2(1) of the former Punishment of Violence Act, which provides for an aggravated constituent element of violent crimes as prescribed by the Criminal Act, is to be deemed as an anti-sexual measure derived from the fact that the previous measure, which uniformly punishs aggravated punishment, is unfair, even though considering the general risk of the habition of an act of violence, which covers the crimes listed in each subparagraph of the same paragraph, as a sign of the aggravated constituent element, even though the circumstances leading up to the individual crime, specific form of act, and the degree of infringement of legal interests, are so diverse that the previous
Therefore, since Article 1(2) of the Criminal Act constitutes “when the act does not constitute a crime due to the amendment of laws after the crime or the punishment is light compared to the former law,” the new law ought to be applied in accordance with the said provision (see, e.g., Supreme Court Decision 2015Do160, Feb. 18, 2016). As such, the instant facts charged cannot be applied to the provisions of the former Punishment of Violences Act, which is a juristic person when the act was committed pursuant to Article 1(2) of the Criminal Act, and the lower judgment was no longer upheld.
3. Therefore, the grounds for appeal are examined.