(영문) 대법원 2015.5.14. 선고 2015도1718 판결

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

Reasons

Judgment ex officio is made.

The lower court upheld the first instance judgment that convicted the Defendant by applying Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Aggravated Punishment Act”) and Article 331(2) of the Criminal Act to the facts charged in the instant case. The part concerning Article 331 of the Criminal Act (hereinafter “the Aggravated Punishment Act of Specific Crimes”) in Article 5-4(1) of the Aggravated Punishment, etc. of Specific Crimes (hereinafter “the Aggravated Punishment Act”) means that a person who habitually commits a crime under Article 331 of the Criminal Act shall be punished more heavily than Article 32 and Article 331 of the Criminal Act (hereinafter “the Aggravated Punishment, etc. of Specific Crimes Act”). However, the provisions of the Aggravated Punishment, etc. of Specific Crimes of this case apply only to the prosecutor’s discretion to prosecute, resulting in confusion in the application of the Act, which would result in serious imbalance between punishment and imprisonment with prison labor and imprisonment with prison labor, which would result in the failure to meet the principle of balance between punishment and imprisonment for life.

Therefore, in this case, prosecuted by applying the provisions of the Act on the Aggravated Punishment of Specific Crimes with respect to the facts charged of the crime falling under the provisions of the Criminal Act, the court below should have deliberated and judged on whether the provisions of the Act on the Aggravated Punishment of Specific Crimes were unconstitutional or whether the procedures for modifying the indictment in order to avoid the unconstitutional outcome according to their application, but without examining them, it erred in the misapprehension of the provisions of the Act on the Aggravated Punishment of Specific Crimes and thereby affecting the conclusion of the judgment.

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.