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The judgment below is reversed, and the case is remanded to the Seoul High Court.
Reasons
Judgment on the grounds for appeal shall be made ex officio.
1. As to the violation of the former Punishment of Violences, etc. Act (a collective deadly weapon, etc.)
A. Of the facts charged in the instant case, the lower court upheld the first instance judgment convicting the Defendant by applying Articles 3(1) and 2(1)1 of the former Punishment of Violences, etc. Act (amended by Act No. 13718, Jan. 6, 2016; hereinafter “former Punishment of Violences Punishment Act”), and Article 260(1) of the Criminal Act with respect to the part where the Defendant carried a knife, which is a dangerous weapon or dangerous object, and assaults the Victim C.
B. After the judgment of the first instance was rendered, the Constitutional Court rendered a decision of unconstitutionality on the part of Article 3(1) of the former Punishment of Violences Act relating to “a person who commits a crime under Articles 260(1), 283(1)(Intimidation), and 366 of the Criminal Act by carrying a deadly weapon or other dangerous object” (the Constitutional Court rendered a decision of unconstitutionality regarding “a person who commits a crime under Article 260(1)(s) and 366(s) of the Criminal Act by putting him/her with a deadly weapon or other dangerous object” (the Constitutional Court rendered a decision of unconstitutionality as to September 24, 2015, 2014Hun-Ba154, 398 (Joint), 2015 Hun-Ba3, 9, 21(Joint), 2015 Hun-Ga14 (Joint), 2015 Hun-Ga18, 2025 (Joint)).”
In a case where the penal law or legal provision becomes retroactively null and void due to the decision of unconstitutionality, the judgment of the court below that affirmed the judgment of the court of first instance that convicted of this part of the facts charged is no longer possible, since the defendant's case which was prosecuted by applying the pertinent provision of law is not a crime (see, e.g., Supreme Court Decisions 91Do2825, May 8, 1992; 2005Do8317, Jun. 28, 2007).
2. As to the violation of the former Punishment of Violence Act (a collective weapon, etc.)
A. The evaluation of the past acts committed as a crime according to the change of the legal ideology, which is the reason for the enactment of penal law, was different, and it is recognized as a crime and punished.