(영문) 대법원 2015.12.23. 선고 2015도16576 판결

The lower court upheld the first instance judgment that convicted the Defendant by applying Articles 3(1) and 2(1)1 of the Punishment of Violences, etc. Act and Article 283(1) of the Criminal Act with respect to intimidation to carry dangerous articles among the facts charged in the instant case (hereinafter “The Punishment of Violences Act”). However, on September 24, 2015, the Constitutional Court rendered a decision of unconstitutionality with respect to “a person who commits a crime under Articles 260(1) and 283(1) of the Criminal Act by carrying a deadly weapon or other dangerous articles in accordance with Article 3(1) of the Punishment of Violences Act, which was applied by the lower court (see, e.g., Constitutional Court Order 2014Hun-Ba154, etc.) and Article 47(3) of the Constitutional Court Act, which became retroactively null and void due to the decision of unconstitutionality.

The judgment of the court below which found the defendant guilty of this part of the facts charged cannot be maintained because the defendant's case which was prosecuted by applying the pertinent provision of law is not a crime.

Therefore, the part of the judgment of the court below regarding the violation of the Punishment of Violences Act (a collective, deadly weapon, etc.) should be reversed. Since the above part and the remainder are concurrent crimes under the former part of Article 37 of the Criminal Act, the judgment below should be reversed in its entirety. Therefore, without examining the grounds of appeal, the judgment of the court below shall be reversed, and the case shall be 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.