[1] The case where the new law should be applied in accordance with Article 1(2) of the Criminal Act when a penal statute was amended or repealed

[2] In lieu of deletion of Article 3(1) of the former Punishment of Violences, etc. Act, which provides for the aggravated elements of Article 257(2) of the Criminal Act, it is a reflective measure taken from the fact that Article 3(1) of the former Punishment of Violences, etc. Act is more severe than that of the former Punishment of Violences, etc., and it constitutes “when a sentence is more severe than that of the former Punishment of Violences, etc. Act” under Article 1(2) of the Criminal Act (affirmative)

[3] In a case where the defendant was prosecuted for causing injury to the victim Gap and Eul by carrying a large tree with a length of 140 cm and a diameter of 4 cm, the case affirming the judgment below holding that the above large tree used by the defendant constituted "hazardous goods" in light of the fact that the defendant left the head of Gap several times with the head of the above large tree, and Gap suffered damage to the sprinke on the day of the instant case after he suffered damage to the sprinke, etc.

[1] Article 1(2) of the Criminal Act / [2] Articles 1(2), 257(1) and (2), and 258-2(1) of the Criminal Act, Article 2(1)3 of the former Punishment of Violences, etc. Act (Amended by Act No. 13718, Jan. 6, 2016); Articles 3(1) and (3) of the Criminal Act / [3] Articles 1(2), 257(1) and (2), and 2(1)3 of the former Punishment of Violences, etc. Act (Amended by Act No. 13718, Jan. 6, 2016); Articles 3(1) and (2)(3) of the former Punishment of Violences, etc. Act (Amended by Act No. 13718, Jan. 6, 2016)

[1] Supreme Court Decision 2009Do12930 Decided March 11, 2010 (Gong2010Sang, 776), Supreme Court Decision 2013Do4862, 2013 Jeondo101 Decided July 11, 2013 (Gong2013Ha, 1553) / [2] Supreme Court Decision 2015Do17907 Decided January 28, 2016 (Gong2016Sang, 399), Supreme Court Decision 2015Do18280 Decided January 28, 2016 (Gong2013Do16192 Decided March 16, 2017)

Defendant

Defendant

Attorney Yoon Yoon-soo

Daegu District Court Decision 2014No1889 Decided April 10, 2015

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Daegu District Court.

1. The grounds of appeal are examined ex officio before determining the grounds of appeal.

In cases where the evaluation of acts deemed a crime in the past according to the changes in the legal ideology that was the reason for the enactment of penal statutes has changed, and thus, the recognition and punishment of such acts was unfair, or where the amendment or repeal of the statutes was made in light of anti-discrimination that the statutory punishment was too difficult, the new law shall be applied in accordance with Article 1(2) of the Criminal Act (see, e.g., Supreme Court Decisions 2009Do12930, Mar. 11, 2010; 2013Do4862, Jul. 11, 2013; 2013Do101, Jul. 11, 2013).

The lower court applied Articles 3(1) and 2(1)3 of the former Punishment of Violences, etc. Act (amended by Act No. 13718, Jan. 6, 2016; hereinafter “former Punishment of Violences Act”), Article 2(1)3 of the Criminal Act, and Article 257(1) of the Criminal Act to the facts charged in the instant case where the Defendant inflicted an injury on the co-defendant 1 and the co-defendant 2 of the first instance trial by carrying large trees, which are dangerous articles.

Article 3(1) of the former Punishment of Violences Act provides that “Any person who commits a crime provided for in any subparagraph of Article 2(1) by means of force of an organization or a group or by showing a power under the pretending to an organization or a group, or who commits such crime by carrying a deadly weapon or other dangerous articles, shall be punished in accordance with any subparagraph of Article 2(1).” Article 2(1) provides that “any person who habitually commits a crime under any of the following subparagraphs shall be punished in accordance with the following classification.” Article 2(1) provides that “Any person who habitually commits a crime shall be punished in accordance with Article 257(1)(injury) of the Criminal Act and Article 257(2)(injury) of the Criminal Act shall be punished by imprisonment for a limited term of at least three years. However, any person who commits a crime under Article 3(1) of the Punishment of Violences, etc. Act amended by Act No. 13718, Jan. 6, 2016; any person who commits a crime under Article 258(1) or 7-2) of the Criminal Act shall be punished by force or by carrying the multiple.

Through the amendment of this Act, Article 3(1) of the former Punishment of Violences Act, which provides for the aggravated elements of Article 257(2) of the Criminal Act, was deleted, and instead, Article 258-2(1) of the Criminal Act was newly established, and Article 3(1) of the former Punishment of Violences Act provides that the statutory penalty is lower than that of the same Act. Even when considering the general risk of bearing a mark of the above aggravated elements, it shall be deemed that the previous penal provision, which uniformly punishs an aggravated punishment for imprisonment for a limited term of not less than three years, is excessive, even though the circumstances leading up to the individual crime, specific form of the act, and the degree of infringement of legal interest, are very diverse. Therefore, it constitutes “a more severe punishment than that of the former Act” under Article 1(2) of the Criminal Act.

Therefore, pursuant to Article 1(2) of the Criminal Act, the act of inflicting an injury on the victims by carrying large trees, which are dangerous objects, cannot be subject to aggravated punishment as provided by the former Punishment of Violences Act, a juristic person, and can only be punished as provided by Article 258-2(1) of the Criminal Act, a new juristic person. Thus, the judgment of the court below that applied the provisions of the former Punishment of Violences Act cannot no longer

2. Furthermore, the grounds of appeal are examined.

A. The lower court determined that the substitute tree used by the Defendant constituted an object that could cause harm to the life or body of the other party or a third party in light of social norms, in light of the following: (a) ① the length of the substitute tree used by the Defendant is 140cm and its diameter is 4cm; (b) the Defendant’s head was fluenced by the victim’s co-defendant 1 in the first instance trial on several occasions; and (c) the victim was fluording at the hospital on the day of the instant case, due to damage to the fluority on the two sides; and

Examining the reasoning of the lower judgment in light of the relevant legal principles, the lower court did not err by misapprehending the legal doctrine on the interpretation of “hazardous goods” as alleged in the grounds of appeal.

B. However, according to the evidence duly admitted, the victims began to assault the Nonindicted Party from the Defendant’s son, and the Defendant continued to commit a unilateral assault even until the Defendant gets another family member at his house, and the Defendant had exercised the force of force against the victims.

The lower court deemed that the Defendant and the victims engaged in fighting, and that the Defendant’s act was not an act to defend against the victims’ unjust infringement. However, the Defendant committed the above act in the course of protecting the Nonindicted Party from the unilateral assault of the victims and in the course of fighting against the victim to escape therefrom, and there may be room to regard it as an act of defense even though it may have exceeded the degree. After remanding, the appellate court needs to review it again.

3. The lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)