[2] In a case where there is a change in the factual basis of the binding judgment of the court of final appeal in the course of a trial after remanding the case from the court of final appeal, whether the court of final appeal has binding force of legal judgment as the grounds for reversal (negative)

1. As to the assertion of violation of the principle of no accusation

Article 254(4) of the Criminal Procedure Act provides that a public prosecutor shall specify the facts in the written indictment by specifying the date, time, place, and method of a crime (Article 254(4) of the Criminal Procedure Act). This is aimed at limiting the object to be tried by the court and facilitating the exercise of his/her right to defense by specifying the scope of defense of the accused (see Supreme Court Decision 2009Do7166, Nov. 24, 201). As such, the court shall judge only to the extent that the public prosecutor instituted a public prosecution. However, as to the grounds for ex officio examination, such as violation of jurisdiction, the existence of litigation requirements, etc., and the absence of

After remanding in Article 60-6 of the Military Criminal Act, the lower court determined that the public prosecution of the part of the instant charges of assault cannot be dismissed, since Article 260(3) of the Criminal Act, which is a provision for the crime of assaulting in cases of assaulting a soldier in a military base, military installations, etc. provides for special exceptions not to apply Article 260(3) of the Criminal Act. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine, the lower court did not err by

2. As to the assertion that the judgment of remand violated the binding force

Article 8 of the Court Organization Act provides that “The judgment of a higher court in a trial shall bind the lower court with respect to the relevant case,” and even after the latter part of Article 436(2) of the Civil Procedure Act, the actual and legal judgment that the court of final appeal considers as the ground for reversal shall bind the lower court. Although the Criminal Procedure Act does not provide any corresponding express provision, the court of final appeal, which is based on the principle of law, may intervene with the legitimacy of the lower court’s judgment as to fact-finding pursuant to Article 383 or 384 of the Criminal Procedure Act, may be limited to limited intervention of the lower court’s decision as to fact-finding pursuant to Article 383 or 384 of the same Act, and thus, the de facto judgment, which is the ground for reversal of the judgment of final appeal, also remains binding. However, in the course of a trial after being remanded

Inasmuch as the victim’s Nonindicted Party withdraws his wish to punish the Defendant prior to the pronouncement of the first instance judgment, the lower court determined that the prosecution on the part of the instant charges of assault should be dismissed pursuant to Article 260(3) of the Criminal Act and Article 382 Subparag. 6 of the Military Court Act, and reversed the conviction part of the lower judgment prior to remand.

After remanding, the lower court determined that Article 260(3) of the Criminal Act does not apply pursuant to Article 60-6 of the Military Criminal Act after recognizing that the place of assault in the facts charged of the instant case falls under Article 2 of the Protection of Military Bases and Installations Act and the victim was a soldier at that time, and determined that the part of the instant facts charged was the principal decision.

Ultimately, the lower court did not err by misapprehending the legal doctrine on the binding force of the judgment of remanding, even if the lower court did not dismiss the prosecution on the part of the instant facts charged, since there was a change in the facts constituting the basis of binding judgment after remanding.

3. As to the assertion of misunderstanding of facts and misapprehension of legal principles concerning the part of violence

On the grounds indicated in its reasoning, the lower court convicted the Defendant of the part of the instant facts charged. Examining the reasoning of the lower judgment after remanding in light of the evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on the credibility of testimony.

4. Conclusion

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

Justices Kwon Soon-il (Presiding Justice)