(영문) 대법원 2015.5.14. 선고 2015도4099 판결

The lower court upheld the first instance judgment that convicted Defendant A by applying Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 331(2) and (1), and Article 342 of the Criminal Act to the facts charged in the instant case.

However, the Constitutional Court rendered a decision on February 26, 2015 that "the part concerning Article 329 of the Criminal Act among Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 10210, Mar. 31, 2010) and the part concerning the attempted crimes under Article 329 of the Criminal Act, etc. of the same Article shall be unconstitutional" (hereinafter referred to as "the provision of this case which was sentenced to the decision of unconstitutionality") that "if it is clearly necessary to increase punishment for any type of crime, the degree of increase shall be contrary to the basic principles of the Constitution guaranteeing human dignity and value, as well as the basic principles of the Constitution guaranteeing equality, which are contrary to the principle of unconstitutionality and equality." The grounds for the decision of unconstitutionality include not only the provision of this case which is unconstitutional, but also the provision which violates the principle of statutory punishment that is unconstitutional and independent, and also, the provision of this case shall be unconstitutional.

Although the lower court’s part concerning Article 331 of the Criminal Act and the attempts thereof under Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes applied to Defendant A with respect to the facts charged in the instant case is not subject to the adjudication of the said Constitutional Court, the above provisions of the Act on the Aggravated Punishment, etc. of Specific Crimes are inconsistent with the basic principles of the Constitution or the principle of equality

Therefore, the lower court should have deliberated and judged whether Article 331 of the Criminal Act and the attempted crimes are unconstitutional, or whether it is necessary to amend the indictment procedure to avoid the unconstitutional outcome following the application of the Act on the Aggravated Punishment, etc. of Specific Crimes.

Nevertheless, without doing so, the judgment of the court below convicting Defendant A of the facts charged in this case, which affected the conclusion of the judgment by failing to exhaust all necessary deliberations. Therefore, without proceeding to decide on the remaining grounds of appeal, the part concerning Defendant A among the judgment below is reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.