2016Do43(a) Violation of the Punishment of Violences, etc. Act (a)

B. Performance of official duties

A

Defendant

Attorney P (National Ship)

Seoul Southern District Court Decision 2015No1129 Decided December 10, 2015

March 24, 2016

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

1. The grounds of appeal are examined.

Criminal facts should be proved to the extent that there is no reasonable doubt (Criminal Procedure Act).

Article 307(2) of the Act, the selection of evidence and the probative value of evidence conducted on the premise of fact finding

Article 308 of the Criminal Procedure Act).

The court below accepted the defendant's ground of appeal concerning mistake of facts as stated in its reasoning.

In addition, the judgment of the first instance court that found the Defendant guilty of the instant facts charged was maintained as it is.

The part of the ground of appeal disputing such judgment of the court below is substantially the freedom of fact-finding court

Determination on the selection and probative value of evidence of the first instance court and the lower court belonging to the judgment, or based thereon.

It is nothing more than an error in fact-finding, and the reasoning of the judgment below is duly adopted.

In light of the evidence duly admitted, the lower court’s judgment is logical and empirical, contrary to what is alleged in the grounds of appeal.

There is no violation of law of free evaluation of evidence against law.

2. The decision shall be made ex officio;

A. The former Punishment of Violences, etc. Act (amended by Act No. 12896, Dec. 30, 2014)

section 3(1) of the former Punishment of Violence Act (hereinafter referred to as the "former Punishment of Violences Act") means the power of an organization or a group.

(1) An offense listed in paragraph (1) of Article 2 shall be committed by showing the power of any organization or group;

Any person who commits a crime by carrying a deadly weapon or other dangerous articles, or who commits the crime by carrying such weapon or other dangerous articles, shall be subject to subparagraphs of Article 2

Article 2(1)3 of the Criminal Act provides that “A punishment shall be imposed in accordance with the same manner as the case may be,” and Article 2(1)3 of the same Act provides that

Any person who commits a crime under Article 257(2) of the Criminal Act shall be punished by imprisonment for a definite term of not less than three years.

The Act on January 6, 2016 amended and enforced by Act No. 13718, Jan. 6, 2016

Article 3 (1) of the Punishment Act shall be deleted, and the punishment shall be prevented accordingly.

Article 258-2 (Special Injury) of the Criminal Code amended and enforced by Act No. 13719 on the same day shall be newly established.

section 257 of this title, "a threat of collective force or by carrying dangerous objects" in paragraph 1 of this title.

The crime referred to in paragraph (1) or (2) shall be punished by imprisonment with prison labor for not less than one year but not more than ten years.

was determined.

As such, the former Punishment of Violence defined the aggravated elements of Article 257(1) of the Criminal Act

Article 258-2(1) of the Criminal Act to the same effect as, instead of, deletion of Article 3(1) of the Punishment Act

The provision of the statutory penalty under Article 3 (1) of the former Punishment of Violences, which is lower than that of Article 3 (1) of the former Punishment of Violence Act, is established in

Even if general risk of bearing a mark of aggravated constituent elements is considered, an individual crime shall be committed.

In spite of the fact that the circumstances, the specific form of conduct and the degree of infringement of legal interests are very diverse, uniform;

to the effect that the previous penal provisions that the punishment shall be aggravated for imprisonment for a limited term of not less than three years are excessive.

It should be regarded as anti-sexual measures from the letter.

Therefore, this is because of the change of the law after the crime under Article 1 (2) of the Criminal Code, the former Act.

As such, Article 258-2(1) of the Criminal Code, a new corporation, is applicable in accordance with the above provision, because it falls under "when it is more severe."

Supreme Court Decision 2009Do12930 Decided March 11, 2010; Supreme Court Decision 2009Do12930 Decided July 11, 2013

2013Do4862, 2013 Jeondo101, etc.

B. (1) Of the facts charged in this case, the court below held the victim with dangerous articles.

As to the act of inflicting bodily injury, Articles 3(1) and 2(1)3 of the former Punishment of Violences Act, Article 2(1)3 of the Criminal Act

Article 257(1) was applied to the judgment of the first instance that found guilty.

However, according to the above legal principles, this part of the facts charged is conducted pursuant to Article 1(2) of the Criminal Act.

Article 258-2 of the Criminal Code, a new corporation, shall not be punished by the provisions of the former Punishment of Violences Act.

Since it can only be punished under Paragraph 1, it is based on the premise that the provisions of the former Punishment of Violences Act apply.

The judgment of the court of first instance has no longer been maintained.

(2) Meanwhile, the first instance judgment maintained by the lower court is based on this part of the facts charged and the remaining facts charged under the Criminal Act.

Since a sentence was rendered on the ground that there is a concurrent relationship under the former part of Article 37, the lower court ultimately rendered a single sentence.

All judgments must be reversed.

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

In other words, the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided by the assent of all participating Justices.

It is decided as per Disposition by the assent of all participating Justices.

Justices Lee Dong-won

Justices Lee In-bok

Justices Kim In-bok, Counsel for the defendant

Justices Kim Gin-young