[사기][공2000.4.1.(103),754]
In a case where only the prosecutor filed an appeal against the part of the judgment of the first instance which acquitted or acquitted part of the concurrent crimes, the scope of reversal at the appellate court’s reversal (=the part of acquittal)
In the case of concurrent crimes provided for in the former part of Article 37 of the Criminal Act and falling under Article 38 (1) 2 of the same Act, one punishment should be imposed, but the above provision is a provision concerning concurrent crimes, and in the case where concurrent crimes are adjudicated at the same time, part of the conviction, the sentence of partially not guilty, or imprisonment with prison labor for some crimes, or the sentence of a fine for other crimes, etc., if several orders of the judgment are rendered, part of the judgment contained in the part can be appealed separately from other parts. The part of the judgment of the first instance which rendered a judgment of not guilty or partially guilty may be separately appealed. Thus, in the case where only the prosecutor appealed the part of the judgment of the first instance which rendered a judgment of not guilty or partially guilty as to the part of the concurrent crimes, the part of the judgment of not guilty which was not appealed by the defendant and the public prosecutor became final and conclusive after the appeal period has expired, and the part of the judgment of not guilty
Article 364 of the Criminal Procedure Act, Articles 37 and 38 of the Criminal Act
Supreme Court en banc Decision 80Do814 delivered on August 26, 1980 (Gong1980, 13135), Supreme Court Decision 84Do862 delivered on November 27, 1984 (Gong1985, 100), Supreme Court en banc Decision 91Do1402 delivered on January 21, 1992 (Gong192, 951)
Defendant
Defendant
Changwon District Court Decision 98No2564 delivered on October 12, 1999
The judgment of the court below is reversed, and the case is remanded to the Changwon District Court Panel Division.
1. We examine the Defendant’s grounds of appeal.
Examining the admitted evidence of the court below in light of the records, it is just to reverse the judgment of the court of first instance which acquitted the defendant about the crime of the fraud of this case by recognizing the intent of the crime of the fraud, since it is difficult to view that the defendant had the ability to repay the money from the victim at the time of borrowing the money from the victim, and the measures to find the defendant guilty of the crime of the fraud of this case are justified. There
2. Health expenses ex officio:
A. According to the records, the Defendant was indicted separately for the crime of causing property damage, other than the crime of fraud in this case, and the two cases were merged, deliberated, and the first instance court convicted him of not guilty and the part of causing property damage (including fine of KRW 500,000,000,000,000). The Defendant did not appeal against the above judgment, and only the prosecutor appealed not guilty. The lower court accepted the prosecutor’s appeal and found the Defendant guilty of the crime of fraud and the crime of causing property damage in the above crime of fraud and the crime of causing property damage in the concurrent relation under the former part of Article 37 of the Criminal Act, while reversed the entire judgment of the first instance court, and sentenced a single punishment for the crime of causing property damage in the above crime of fraud and the crime of causing property damage by five months.
B. In the case of concurrent crimes provided for in the former part of Article 37 of the Criminal Act and falling under Article 38 (1) 2 of the same Act, one punishment should be imposed, but the above provision is a provision concerning concurrent crimes, and where several orders of the judgment are rendered, such as partial conviction, partial acquittal, imprisonment with labor for a part of a crime, and fines for other crimes, the part included in one order may be appealed separately from other parts, and where both parties have not appealed separately from other parts. Thus, where only the prosecutor appealed on the part of the concurrent crimes, the part of the judgment of the first instance which acquitted the defendant and the prosecutor has not appealed on the part of the non-guilty, the part of the judgment of the non-guilty verdict becomes final and conclusive after the appeal period has expired, and if that part is reversed at the appellate court, only the part of the judgment of the non-guilty shall be reversed (see, e.g., Supreme Court en banc Decision 80Do1481, Aug. 26, 1980; Supreme Court Decision 201Do1984Do12986, Apr. 1987).
C. Therefore, in this case where the defendant did not appeal against the crime of causing property damage, which is the guilty part of the judgment of the court of first instance, and only the prosecutor's appeal against the crime of causing property damage, which is the part of not guilty, has been finalized, and only the part of innocence has continued to be tried and determined by the court below. Thus, the court below rendered a sentence for concurrent crimes with the crime for which the judgment of first instance has not become final and conclusive, even though the part of innocence has to be tried and judged only the above not guilty part, and thus, the court below rendered a sentence for concurrent crimes with the crime of not final and conclusive.
3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Im-soo (Presiding Justice)