[Breaking] Supreme Court Plenary Session: "If Punishment Provisions Change Favorably, New Law Must Always Apply"... Abolition of 'Donggi Theory'

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] The Supreme Court has ruled that the new law must always be applied when criminal punishment regulations are changed in favor of the defendant.

The Supreme Court en banc (Presiding Justice Lee Dong-won) on the 22nd at 2 p.m. overturned the original sentence of 2 years and 10 months imprisonment in the appeal trial of Mr. A’s case involving violations of the Road Traffic Act (drunk driving) and sent the case back to the Seoul Western District Court.

Mr. A was indicted on charges including fraud and violation of the Electronic Financial Transactions Act as a participant in a voice phishing scheme, violation of the Special Act on the Treatment of Traffic Accidents (injury) for causing an accident while unlicensed or intoxicated, and violations of the Road Traffic Act (unlicensed driving and drunk driving).

The issue before the Supreme Court was the charge of violating the Road Traffic Act (drunk driving) after being caught riding an electric kickboard with a blood alcohol concentration of 0.209% among Mr. A’s charges.

This was because the Road Traffic Act was amended while Mr. A was receiving a second trial after being found guilty in the first trial, and the amended law was enforced after the second trial verdict was announced.

The prosecution charged Mr. A under Article 148-2(1) of the Road Traffic Act before the amendment for his electric kickboard drunk driving act.

At that time, the statutory penalty was "imprisonment for not less than 2 years and not more than 5 years or a fine of not less than 10 million won and not more than 20 million won."

However, after the second trial guilty verdict was announced, the amended Road Traffic Act introduced new definitions for "personal mobility devices" such as electric kickboards and "bicycles, etc." including them in Article 2(19-2) and (21-2).

According to the amended law, drunk driving of personal mobility devices like electric kickboards is no longer subject to Article 148-2 concerning "motor vehicles, etc." but falls under Article 156(11) concerning "bicycles, etc."

The statutory penalty was significantly reduced to a fine of up to 200,000 won, detention, or a surcharge.

Article 1(1) of the Criminal Act (Establishment and Punishment of Crimes) stipulates the principle of the law at the time of the act, stating, "The establishment and punishment of a crime shall be according to the law at the time of the act." However, paragraph 2 of the same article provides that "If the law is changed after the crime so that the act no longer constitutes a crime or the penalty is lighter than the old law, the new law shall apply," thereby mandating the application of the new law when favorable.

Until now, the Supreme Court had taken the so-called "motive theory," which examines whether the purpose of the amendment was a "reflective consideration that the previous law was unjust in defining and punishing the crime or that the penalty was excessive," to exceptionally apply the law at the time of judgment. However, on this day, it changed this view.

This content was produced with the assistance of AI translation services.