[1] Whether "an offense prescribed by this Act" under Article 7 of the Punishment of Violences, etc. Act means only "an offense prescribed by the Punishment of Violences, etc. Act" (affirmative)

[2] The meaning of "Carrying a dangerous weapon" under Article 7 of the Punishment of Violences, etc. Act / Whether the act of carrying a deadly weapon that is likely to be used for a crime under the same Act without justifiable grounds satisfies the elements of the crime of violation of the same Act (affirmative), and whether the act of carrying a deadly weapon or other dangerous object is presumed to have been used for a crime under the same Act only with the possession of a deadly weapon or other dangerous object (negative) / Whether the burden of proving that the defendant carried a deadly weapon or other dangerous object that is likely to be used for a crime under the same Act (affirmative)

[1] Article 12(1) of the Constitution of the Republic of Korea; Articles 1(1), 260(1), 283(1), and 366 of the Criminal Act; Articles 3(1) and (3) of the former Punishment of Violences, etc. Act (Amended by Act No. 12896, Dec. 30, 2014); Articles 2(1) and (2), (3), 3(1) and (4) of the former Punishment of Violences, etc. Act (Amended by Act No. 13718, Jan. 6, 2016); Article 7 of the Punishment of Violences, etc. Act / [2] Article 7 of the Punishment of Violences, etc. Act; Article 308 of the Criminal Procedure Act

[1] [2] Supreme Court Decision 2017Do7687 Decided September 21, 2017 (Gong2017Ha, 2047) (Gong2017Ha, 2047) Supreme Court Decision 2017Do20980 Decided February 28, 2018 / [1] Supreme Court Decision 2017Do15914 Decided January 24, 2018 (Gong2018Sang, 543), Constitutional Court en banc Decision 2014Hun-Ba154, 398, 2015Hun-Ba3, 9, 14, 18, 2015Hun-Ga3, 2015, 2015Hun-Ga3, 9, 14, 200, 21, and 25 (Hun-Gong28, 1415)

Defendant

Defendant

Attorney Park Ho-young

Changwon District Court Decision 2017No1723, 2354 decided March 28, 2018

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

The grounds of appeal are examined.

1. As to the claim of mental disability

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court, based on its reasoning, was justifiable to have rejected the assertion of mental and physical disability on the ground that the Defendant did not seem to have reached the instant crime under the state of mental and physical disability. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds

2. As to the violation of the Punishment of Violences, etc. Act among the facts charged in the instant case

A. The principle of no punishment without the law requires that a crime and punishment shall be prescribed by law in order to protect an individual’s freedom and rights from the arbitrary exercise of the State’s penal authority. In light of such purport, the interpretation of penal provisions shall be strict, and an excessively expanded interpretation or analogical interpretation of the meaning of the express penal provisions in the direction unfavorable to the defendant is not permitted as it violates the principle of no punishment without the law (see, e.g., Supreme Court Decisions 201Do7725, Aug. 25, 201; 2012Do4230, Nov. 28, 2013).

B. As to the provision on partial aggravated punishment of the Act on the Aggravated Punishment, etc. of Specific Crimes, the Constitutional Court ruled that the statutory punishment is unconstitutional on the ground that the provision on partial aggravated punishment of the same element as the Framework Act is in violation of the legitimacy and balance of the penal system, thereby violating the basic principles of the Constitution. On September 24, 2015, the Criminal Act was amended as Act No. 7891, Mar. 24, 2006; Article 3(1) of the former Punishment of Violences, etc. Act (amended by Act No. 12896, Dec. 30, 2014); Article 260(1) and Article 283(1)5 of the Criminal Act (amended by Act No. 12896, Dec. 16, 2014) provides that “a person who committed a crime of violence, intimidation, etc. by carrying a deadly weapon or other dangerous articles, and Article 266(1)(2)1)6 of the former Punishment of the Act (amended by Act No. 20194.

Article 2(1) and (3) of the former Punishment of Violence Act, which provides for the aggravated punishment of special violent crimes such as habitual assault, is deleted, and Article 3(1) and (3) of the former Punishment of Violences Act, which provides for the aggravated punishment of special violent crimes such as habitual assault, is deleted. Accordingly, following such deletion, Article 2(2), (3), and (4) of the former Punishment of Violence Act, which provides for the aggravated punishment provision of joint violent crimes and for the aggravated punishment provision of repeated crimes, were amended as of January 6, 2016, and thereby, Article 2(2), (3), and (4) of the former Punishment of Violences Act, which provides for the aggravated punishment provision of concurrent violent crimes and for the aggravated punishment provision of repeated crimes, are only applicable under the Framework Act on the Punishment of Violences.

In addition, Article 7 of the Punishment of Violences Act provides that "any person who carries, provides or arranges any deadly weapons or other dangerous articles that are likely to be used for a crime under this Act without justifiable grounds shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding three million won, by punishing any person who is likely to commit a crime of collective or habitual or special violence, etc., thereby maintaining public peace and order without substantial changes from the time of the enactment of the Act. The crime of violation of the Punishment of Violences Act has the character as a preliminary crime of "crime under this Act", which is a crime subject to the crime.

C. In full view of the general legal principles on the interpretation of the penal provisions and the background and contents of the amendment of the Punishment of Violences Act, the legislative intent and the text of Article 7 of the Punishment of Violences Act, the structure of the language and text, and the nature and requirements for establishment of the crime of violation of the Punishment of Violences Act, it is reasonable to interpret the term “crimes stipulated in this Act” as only the term “crimes stipulated in the Punishment of Violences Act” under Article 7 of the Punishment of Violences

D. Meanwhile, “Carrying” of a dangerous object as referred to in Article 7 of the Punishment of Violences Act refers to carrying a dangerous object under the intent to use at the scene of the crime, which is close to the body or body, and even if there is no other specific criminal act if there is no other criminal act, the act of carrying a deadly weapon that is likely to be used for the crime under the Punishment of Violences Act without any justifiable reason, it does not mean that the act of carrying a deadly weapon or other dangerous object itself is likely to be used for the crime under the Punishment of Violences Act. Furthermore, the burden of proving the fact that the defendant carries a deadly weapon or other dangerous object that is likely to be used for the crime under the Punishment of Violences Act is a prosecutor (see Supreme Court Decision 2017Do7687, Sept. 21, 2017).

E. Of the facts charged in the instant case, the summary of the violation of the Punishment of Violences Act (hereinafter referred to as “instant charges”) (hereinafter referred to as “instant charges”) is as follows: (a) around February 14, 2017, around 14:10, the Defendant carried a dangerous weapon, which is a deadly weapon, and is likely to be used for committing a crime of violence, etc. without justifiable grounds (20cm in length).

F. However, according to the records, the following circumstances are revealed.

(1) The prosecutor prosecuted this part of the facts charged on the ground that it constitutes Article 7 of the Punishment of Violences Act. However, this part of the facts charged merely states that “it is likely to be used for a crime of violence, etc.” and there is no indication as to whether the Defendant carried a knife with the intent to use for a crime under the Punishment of Violences Act.

(2) Although the Defendant’s statement in an investigative agency on the date and time as stated in this part of the facts charged and the developments leading up to the possession of a knife at a place is somewhat different from the detailed matters, it is merely the purport that the Defendant had a knife knife in his house and left the front corridor, and in detail, did not make any particular statement on whether the Defendant had a knife with the intent to use for any crime under the Punishment of Violences Act.

(3) Even if the Defendant, at the date indicated in this part of the facts charged, tried to find his wife and to find one’s wife in order to commit an act of destroying and damaging property, such as attaching the entrance, and then returned to his house and took a knife a knife back to his house and put the knife onto his house, or the Defendant was in a emotional unstable state by administering a knife at the night, such circumstance alone cannot be readily concluded that the Defendant had the intent to actually commit an offense provided for in the Punishment of Violences Act, not by the Criminal Act, but by committing a crime under the Punishment of Violences.

(4) Furthermore, the record reveals that prior to the instant case, the Defendant was sentenced to a suspended sentence of imprisonment twice for the crime of bodily injury or obstruction of performance of official duties under the Criminal Act, or was sentenced to a fine twice for the same crime, and there is no record of punishment for the crime under the current Punishment of Violences Act.

G. Examining these circumstances in light of the aforementioned legal principles, the evidence presented by the prosecutor alone cannot be deemed as having been proven without any reasonable doubt that the Defendant carried with him dangerous objects that could be commonly used for another crime under the Punishment of Violences Act without justifiable grounds. Even if the Defendant possessed a knife with the intent to use for such other crime, such crime cannot be deemed as a crime under Article 7 of the Punishment of Violences Act, since it cannot be deemed as a crime under Article 7 of the same Act, according to the amendment of the Act on January 6, 2016. Therefore, the Defendant cannot be punished as a crime under violation of the Punishment of Violences Act.

H. Nevertheless, the lower court upheld the first instance judgment convicting of this part of the facts charged. In so determining, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the interpretation of Article 7 of the Punishment of Violences Act and the elements of a crime of violating the Punishment of Violences Act. The Defendant’s ground of appeal pointing this out has merit.

3. Scope of reversal

For the above reasons, the part of the judgment below concerning this part of the facts charged should be reversed. Since the court below rendered a single punishment on the grounds that the violation of the Punishment of Violences Act (person in charge) and the remaining guilty part against the defendant are concurrent crimes under the former part of Article 37 of the Criminal Act, the judgment below should be reversed in its entirety.

4. Conclusion

Therefore, the judgment of the court below is reversed, and 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.

Justices Park Jung-hwa (Presiding Justice)