|
【Main Issues and Holdings】
[1] In the event an act is no longer considered a crime or the punishment thereof is alleviated pursuant to the changes made in either a penal statute stipulating the establishment and punishment of crime or its delegated legislation, whether Article 1(2) of the Criminal Act and Article 326 Subparag. 4 of the Criminal Procedure Act apply in principle, without regard to whether the changes were prompted by the realization that classifying the act as a crime under the previous law was unreasonable or the punishment imposed was excessively severe (affirmative)
Whether this legal doctrine extends to cases where a penal statute entrusted or delegated the powers to define certain elements of crime to public notices, including administrative rules, administrative orders, and ordinances, inasmuch as these public notices remain within the permissible ambit of delegated legislation (affirmative)
In the event changes are made to legislation other than the relevant penal statute or its delegated legislation to which a law-making power was entrusted or assigned, requirements for the applicability of Article 1(2) of the Criminal Act and Article 326 Subparag. 4 of the Criminal Procedure Act
In a case where legislation with a built-in expiration date or period, thus limiting the duration of its own validity, has lost validity by having exceeded the period of validity, whether such a case constitutes the “change in law” under Article 1(2) of the Criminal Act and Article 326 Subparag. 4 of the Criminal Procedure Act (negative)
[2] In the case where: (a) the Defendant was indicted on the charge of violating the former Road Traffic Act (driving under influence) by having driven an electric kickboard under the influence of alcohol despite having had been previously punished for violating the Road Traffic Act (driving under influence); (b) the former Road Traffic Act was subsequently amended, and the amended Road Traffic Act entered into force following the pronouncement of the lower judgment, whereupon a definition clause that was inserted in Article 2 Subparags. 19-2 and 21-2 included “personal mobility device,” such as electric kickboards, and “bicycles, etc.” encompassing personal mobility devices; and (c) as a result, the law was revised to mitigate the statutory punishment but did not set forth a transition clause, whereby the act of driving personal mobility devices under the influence of alcohol was excluded from the subject of the application of Article 148-2 which punishes the act of driving an automobile, etc. under the influence of alcohol, and instead, Article 156 Subparag. 11 that punishes the act of riding a bicycle, etc. under the influence of alcohol applied, the case holding that the lower judgment, which found the Defendant guilty of the facts charged by applying Article 148-2(1) of the former Road Traffic Act and Article 44(1) of the Road Traffic Act, the law then in effect at the time of the commission of the crime, can no longer be upheld, on the ground that it is indisputable that the foregoing statutory amendment constitutes a case in which a sentence has been mitigated in accordance with the amendment of a penal statute stipulating constituent elements and, therefore, the said act can only be punished under Article 156 Subparag. 11 and Article 44(1) of the current Road Traffic Act, the new law, in accordance with Article 1(2) of the Criminal Act, without regard to whether the change in the previous statute was driven by reflective consideration
|
