1. In a case where a judgment of conviction has become final for a part of multiple criminal facts which are in a comprehensive crime as to the first ground for appeal, if a new public prosecution was instituted for the remaining crimes committed prior to the pronouncement of the judgment of facts in the final judgment, the new public prosecution is to be instituted for the same case as the case in which the final judgment was rendered, and thus, a judgment of acquittal shall be rendered (Article 326 subparag. 1 of the Criminal Procedure Act). However, in order to apply such a legal principle, it is necessary for the relevant defendant to be prosecuted for habitual crimes and be punished by a final judgment prior to the final judgment.

In a case where it is found to be a crime that constitutes a basic element of a habitual crime, even if only the case was committed after the indictment or the case was newly committed after considering the facts charged and the facts charged in the previous judgment, etc., it shall not be deemed that the res judicata effect extends to the remaining crimes before the pronouncement of the judgment in fact, considering that the final judgment as above was a final judgment as to a part of the habitual crime, and that the final judgment as mentioned above was a final judgment as to a part of the habitual crime (see, e.g., Supreme Court Decisions 2001Do3206, Sept. 16, 2004; 2009Do12627, Feb. 11, 2010). Meanwhile, even if the prosecutor arbitrarily exercised his/her authority to institute a prosecution and gives a substantial disadvantage to the defendant, it shall not be deemed that the res judicata effect has been significantly exceeded the discretion of the prosecution

The prosecution can be denied in the case of the abuse of the authority to prosecute.

Here, a person’s intention to prosecute is not sufficient merely by negligence in the course of performing his/her duties, and at least there is an intention to do so (see Supreme Court Decision 99Do577, Dec. 10, 199, etc.). The lower court, based on its stated reasoning, shall be the Defendant.