[특수강도·특수강도상해·강도예비][집24(3)형,124;공1976.12.1.(549) 9470]
The appellate court's judgment that found the defendant guilty among the facts charged against the defendant Gap, Eul, Byung, and Byung, which found the defendant guilty, which found the defendant guilty only in the case where the appellate court reversed and remanded only the convicted part, the scope of the appellate court's judgment.
The appellate court's judgment that found the defendant guilty, "A", "B", "C", and "C" of six public prosecution facts against the defendant in the appellate court shall not file a final appeal against the acquittal portion, but only the defendant was pronounced guilty without having filed a final appeal against the acquittal portion, and the appellate court's judgment that found the defendant guilty cannot be found guilty of the above public prosecution facts on the ground that the evidence of the court below's conviction is not sufficient to prove the defendant's conviction. In the case where the court below reversed and remanded the above public prosecution facts, the reversed part is merely the above facts of "A", "B", and "C", and the appellate court's judgment after remand may examine only the facts of "A", "B", and "C", and it shall not be allowed to examine the facts of the crime that became final and conclusive.
Defendant
Attorney Kim Young-young
Seoul High Court Decision 76No548 delivered on August 18, 1976
The original judgment is reversed, and the case is remanded to Seoul High Court.
Judgment on the Grounds for Appeal by Defendant and Defense Counsel
The judgment of the appellate court prior to the remanding of the original judgment is consistent with the records, i.e., 1-A, 2-A, 1-C, 2-B of the facts charged against the defendant, and 1-C, 4-2 of the facts charged, and 1-B of the facts charged, and the prosecutor acquitted the defendant. The prosecutor did not file a final appeal on the acquittal part, and only the facts charged with the defendant's conviction are not admitted as evidence before the remanding of the original case, and the court below cannot find the defendant guilty of the above facts charged. The court below reversed the judgment prior to remand of the original case on the ground that there was an error in violation of the rules of experience and logic against the rules of experience or insufficient deliberation and remanded to the Seoul High Court, which is the court below. The court below reversed 1-A, 2-C, 3, and 5-year imprisonment with prison labor by the evidence prior to the remand of the facts charged against the defendant and remanded without any further examination of evidence.
According to the above facts, the facts charged by the court below 2-B, which was found not guilty before remand, are reversed and remanded to the court below after the prosecutor's failure to appeal, are only 1-A, 2-A, and 2-A, which the court below found the defendant guilty before remand, so only the facts charged with the public prosecution which was reversed after remand can be examined after remand. Thus, the court below's judgment after hearing the facts charged with the public prosecution and finding the defendant guilty after remand is erroneous in the misapprehension of legal principles as to the scope of the trial (see Supreme Court Decision 74Do1301, Oct. 8, 1974). Further, the court below's judgment after remand is erroneous in the misapprehension of legal principles as to the scope of the trial (see Supreme Court Decision 2-A, 74Do1301, Oct. 8, 1974). It is contrary to the purport of the judgment of remand, and it is against the rules of experience and logic as well as the reasoning for lack of evidence due to insufficient deliberation.
Therefore, the original judgment is reversed, and the case is remanded to Seoul High Court. It is so decided as per Disposition by the assent of all participating Justices.
Justices Han-jin (Presiding Justice)