2015Do18598(a) Residence

(b) Damage to property;

(c) Violation of the Punishment of Violences, etc. Act;

(d) Violation of the Punishment of Violences, etc. Act (Habitual destruction and damage, etc.);

A

Defendant

Attorney S (National Ship)

Public-Service Advocates

Seoul Central District Court Decision 2015No2032, 2015No2995 decided November 6, 2015

Judgment

February 18, 2016

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

Judgment ex officio is made.

1. Reasons for enacting the penal provisions of Article 1 (2) of the Criminal Act or subparagraph 4 of Article 326 of the Criminal Procedure Act;

In accordance with the change of the legal ideology, the previous punishment itself was unfair, or the punishment is excessive.

It should be interpreted that the law should be applied to the case where the law was amended or amended in the reflective consideration.

(See Supreme Court Decision 86Do42 delivered on March 10, 1987, etc.)

2. A. The lower court: (a) The Defendant habitually intrudes upon another person’s residence four times; and (b) four times each time.

each of the facts charged in this case that the property was damaged shall be punished as to the punishment of violence, etc.

Act (amended by Act No. 13718, Jan. 6, 2016; hereinafter referred to as "former Punishment of Violences Act").

Article 2(1)1 of the Criminal Act, Article 319(1) of the Criminal Act, and Article 366 of the Criminal Act.

It was found guilty by applying it.

(b) A person who habitually commits any of the following crimes under Article 2 (1) of the former Punishment of Violences Act:

§ 319 of the Criminal Code, providing that "a punishment shall be imposed in accordance with the following classification:

A person who commits a crime referred to in Article 366 shall be punished by limited imprisonment for a definite term of at least one year.

The Act on January 6, 2016 was amended and enforced by Act No. 13718 on January 6, 2016. The punishment of violence, etc.

The Act deleted Article 2(1) and did not separately stipulate transitional provisions. On the other hand, punishment is imposed.

There is no provision that punishs habitual intrusion of residence or habitual destruction or damage of property.

As such, the Criminal Code provides an aggravated constituent elements for the crime of intrusion upon residence and the crime of causing property damage.

The purpose of Article 2 (1) of the former Punishment of Violences Act, which was to delete, is a mark of the aggravated constituent elements.

Even if general risks of the habiting of violence are considered, the circumstances leading to the individual crime, and the Gu

Although the form of physical behavior and the degree of infringement of legal interests are very diverse, it is uniformly subject to aggravated punishment.

as a result, it should be deemed that the previous penal provision is unfair and that it is an anti-sexual measure from the point of view;

This constitutes "when a sentence has been abolished due to the amendment or repeal of the law after the crime under Article 326 (4) of the Criminal Procedure Act."

section 3.

Thus, each of the facts charged of this case is guilty by applying the former Punishment of Violences Act.

The judgment of the court below that judged cannot be maintained any longer.

3. Therefore, without examining the grounds of appeal, we reverse the judgment below and the case is remanded again.

Opinions of all participating Justices on the bench shall be remanded to the lower court for a trial and determination.

(2) It is so decided as per Disposition.

Justices Cho Jong-hee

Justices Park Sang-hoon

Justices Kim Jae-tae

Justices Park Sang-ok