B. The measure to be taken by the appellate court where the first instance judgment dismissing a public prosecution is unlawful

B. Pursuant to Article 366 of the Criminal Procedure Act, the appellate court shall dismiss the prosecutor's appeal on the ground that the appellate court determined that the judgment dismissing the first instance public prosecution violates the law, and thus, without any need to review the case, reversed the judgment of the first instance court and remanded the case to the court of the first instance. Although the appellate court did not reverse the judgment of the first instance court's rejection of the public prosecution, and it did not reverse the judgment, and it did not reverse the judgment,

1. The first instance judgment

On August 13, 191, the court of the first instance held that the defendant was the co-representative of the non-indicted 1 corporation, and in collusion with the defendant 1 and the co-defendant 2 of the court of the court below, who had a regular representative director as the co-defendant 1 of the court of the court below. On August 13, 191, the non-indicted 1 corporation had a duty to transfer ownership on the non-indicted 1 corporation's Han Young-gu 189-gu 187, Nam-gu, Busan, Busan, which had a duty to transfer ownership on the non-indicted 1 corporation, sold 42,50,00 won to the non-indicted 1 Kim Jong-gu, and acquired property benefits and caused property damages to the above Han Young-gu, which had been charged with the above violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the crime of sale in lots between the defendant and the non-indicted 13 of the court of the court below's judgment of the first instance judgment).

2. The judgment of the court below

When a prosecutor filed an appeal against the judgment of the court of first instance, the court below rejected the prosecutor's appeal on the ground that the facts charged prior to the above defendant and the facts charged in this case cannot be deemed to be in the relation of a single comprehensive crime. Thus, the dismissal of the public prosecution by the court of first instance on the ground that the effect of the above prior public prosecution extends to this case, on the other hand, the defendant in collusion with the above co-defendants in the court of first instance shall be pronounced not guilty on the ground that there is no proof of crime. On the other hand, the judgment of the court of first instance regarding the dismissal of the public prosecution should be dismissed on the ground that there is no benefit of appeal and there is no benefit of

3. Judgment of party members

If the defendant, who was the representative director of the non-indicted 1 corporation, has a duty to separately purchase each apartment unit of this case, and to perform the procedure for ownership transfer to each victim of the facts charged of this case, the legal interests protected by the law of each victim are independent. Thus, even if the defendant's criminal intent is a single, and the timing of each act of registering ownership transfer and the establishment of neighboring mortgage is close in the third party, and all victims are the same right to the registration of ownership transfer from the non-indicted 1 corporation, the facts charged of this case cannot be deemed as a single crime, and there is a relationship between the above facts charged of this case and the facts charged of this case's independent crime of occupational breach of trust (see Supreme Court Decision 93Do743 delivered on June 22, 1993). Accordingly, the court below's dismissal of the public prosecution by the court of first instance in the same purport is justified.

However, Article 366 of the Criminal Procedure Act provides that "when the judgment of the court below is reversed on the ground that the judgment of dismissal or violation of jurisdiction violates the law, the case shall be remanded to the court below by judgment." Thus, the court below should reverse the judgment of the court of first instance and remand the case to the court of first instance without the necessity of deliberation, so long as it judged that the judgment of dismissal of the court of first instance violates the law, the court below should dismiss the judgment of first instance and remand the case to the court of first instance (see Supreme Court Decision 4292No756 delivered on July 26, 1961; Supreme Court Decision 4293Ma83 delivered on January 11, 1962; Supreme Court Decision 4293Ma83 delivered on January 11, 1962). Thus, the court of first instance to which the case was remanded shall be acquitted, since there is no proof that the defendant conspired with the co-defendants of the court of first instance about the above facts charged, and the prosecutor's appeal was dismissed, without the ground of appeal.

3. It is so decided as per Disposition by the assent of all participating Justices who reviewed the case in accordance with Article 393 of the Criminal Procedure Act and remanded the case to the court of first instance.

Justices Kim Sang-won (Presiding Justice)