(Changeed Crime Name: Habitual Special Larceny)

1. Where a person who has been convicted of a habitual offender committed a crime by the same damp, and a new trial has been commenced for the final judgment of conviction (hereinafter referred to as "crime committed earlier and subject to new trial"; hereinafter referred to as "crime committed subsequently"), and even if a subsequent offense by the same damp wall was committed prior to the pronouncement of a new judgment on the judgment subject to new trial, res judicata effect of the judgment on the subsequent offense does not extend to the subsequent offense. Furthermore, even in cases where the judgment on the subsequent offense was first sentenced before the pronouncement of a new judgment on the prior offense prior to the pronouncement of a new judgment on the judgment, res judicata effect of the judgment on the subsequent offense does not extend to the prior offense (see Supreme Court en banc Decision 2018Do20698, Jun. 20, 2019; Supreme Court Decision 2016Do7566, Jul. 25, 2019).

2. A. The record reveals the following facts.

(1) On June 22, 2010 and June 30, 2010, the Defendant (hereinafter “instant judgment subject to a retrial”) was habitually sentenced to a judgment sentenced to imprisonment of one year and six months (hereinafter “instant judgment subject to a retrial”) for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 10210, Mar. 31, 2010; hereinafter “the Specific Crimes Aggravated Punishment Act”) at the Seoul Northern District Court on October 15, 2010. The judgment became final and conclusive on October 23, 2010. (2) The Defendant was habitually sentenced to imprisonment with prison labor from the Seoul Central District Court on June 11, 2015 to another person’s property (hereinafter “the subsequent judgment”) during the period from October 28, 2013 to October 28, 2015.

(3) On the other hand, the Constitutional Court held that Article 329 of the Criminal Act is unconstitutional in relation to Article 5-4 (1) of the Specific Crimes Aggravated Punishment Act, which is a legal provision applicable to the judgment subject to reexamination of this case.

The Court rendered a ruling of commencing a new trial on June 21, 2016 (the Constitutional Court Decision 2014Hun-Ga16, Feb. 26, 2015, etc.). Accordingly, the Defendant requested a new trial on the instant ruling of the new trial, and the Defendant was ordered to revise the indictment due to habitual special larceny.

B. Examining the above facts in light of the legal principles as seen earlier, res judicata of a final judgment on the instant subsequent offense does not extend to the instant prior offense.

Nevertheless, the lower court determined that the judgment on the subsequent offense of this case, which became final, also extends to the preceding offense of this case, and sentenced the Defendant to acquittal. In so doing, the lower court erred by misapprehending the legal doctrine on the effect of the judgment subject to a retrial or res judicata of a final and conclusive judgment, thereby adversely affecting the conclusion

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.

Chief Justice Kim Jong-il

Justices Lee Dong-won

Justices Kim Gin-soo