Name: Habitual theft

1. Where a person who has received a final judgment of conviction for habitual crimes committed a crime by the same damp, and a new trial has commenced for the final judgment of conviction (hereinafter referred to as "crime committed subsequent to a crime committed prior to the preceding conviction"), even in the case of a crime committed subsequent to a new judgment by the same damp wall prior to the pronouncement of a new judgment on the judgment of new trial on the judgment of new trial, res judicata effect of the judgment on the subsequent offense does not extend to the subsequent offense. Furthermore, even in the case where the judgment on the subsequent offense was first declared prior before the pronouncement of a new judgment on the prior offense before the pronouncement of a new judgment on the previous offense, 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 2016Do756, Jul. 25, 2019).

2. A. The record reveals the following facts.

1) On November 27, 2014, the Defendant habitually stolen another’s property on three occasions from June 20, 2014 to July 12, 2014 (hereinafter “instant preceding crime”) the Seoul Northern District Court issued the Act on the Aggravated Punishment, etc. of Specific Crimes (Act No. 10210, Mar. 31, 2010) with regard to the crime committed by the Defendant.

On December 5, 2014, the decision was sentenced to 1 year and 6 months of imprisonment, 2 years of suspended execution (hereinafter "the decision of this case") due to the violation of the Specific Crimes Aggravated Punishment Act (hereinafter "Special Crimes Aggravated Punishment Act"), and the decision was finalized on December 5, 2014.

2) On October 30, 2015, the Defendant habitually from the Seoul Central District Court to May 25, 2015.

By August 31, 2015, the Defendant was sentenced to ten months of imprisonment for a crime that stolen another’s property (hereinafter “the subsequent offense of this case”) by 12 times until August 31, 2015, and both the Defendant’s appeal and final appeal were dismissed, and the judgment became final and conclusive on April 7, 2016.

3) Meanwhile, the Constitutional Court held that Article 329 of the Criminal Act violates the Constitution among Article 5-4(1) of the Specific Crimes Aggravated Punishment Act, which is a legal provision applicable to the instant judgment on the retrial (see, e.g., Constitutional Court Decision 2014HunGa16, Feb. 26, 2015). In this regard, the Defendant filed a petition for a retrial on the instant judgment subject to retrial and was ordered to commence a new trial on December 24, 2015, and the lower court, which is a legal provision applicable to the instant judgment on the retrial, allowed amendments to the indictment for habitual 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 constitutes a prior 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 of the judgment.

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 Kim Jae-in

(1) The chief of the Supreme Court;

Justices Lee Jae-hwan