Law Firm Kim & Partners

Attorney Kim Jong-soo, Kim Jong-soo, Hong-ju, Hong Min, and Cho Jae-ra

Article 8 of the Court Organization Act provides that "Any decision in a trial by a superior court shall bind the lower court with respect to the case in question," and the latter part of Article 436 (2) of the Civil Procedure Act provides that the court of final appeal shall bind the lower court.

Although the Criminal Procedure Act does not have any express provision corresponding thereto, in light of the purport of the aforementioned legal provision, the existence of the tier system, and the fact-finding by the Supreme Court, which may intervene in the propriety of the judgment of the court below regarding fact-finding while judging the grounds of appeal, the actual judgment, which served as the grounds for reversal of the judgment of the court of final appeal, should also be deemed binding in criminal proceedings. Therefore, the court that was remanded from the court of final appeal after remanding the case, shall be bound by the actual and legal judgment presented by the court of final appeal as the grounds for reversal (see, e.g., Supreme Court Decision 2008Do10572, Apr. 9, 2009).

Before remanding, the lower court reversed the first instance judgment convicting the Defendant of the instant facts charged, and sentenced the Defendant not guilty on the grounds that the credibility of the victim’s statement was insufficient. In so doing, the lower court reversed the lower court’s judgment that found the Defendant guilty of the instant facts charged and acquitted the Defendant. The lower court, prior to remanding the case, deemed that the grounds cited by the lower court on the grounds of rejecting the credibility of the victim’s statement, are difficult to be deemed incompatible with the victim’s statement in light of the specific circumstances faced by the victim, etc., or are merely incidental matters not directly related to the facts charged. In so doing, the lower court reversed and remanded the lower judgment that determined otherwise to the effect that the lower court erred by exceeding the bounds of the principle of free evaluation of evidence

Examining the reasoning of the judgment below in light of the above legal principles, the judgment of the court below is just in accordance with the binding force of the judgment remanded. The judgment below did not err in the misapprehension of facts beyond the bounds of the principle of free evaluation of evidence against logical and empirical rules or by misapprehending the relevant legal principles or omitting judgment.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok

Justices Ansan-chul

Justices Kim Jong-hwan