In a case where only the prosecutor appealed on the part of the judgment of the court of first instance which found the guilty on the part of the facts charged related to concurrent crimes, the scope of reversal at the appellate court’s reversal (=the part not guilty)

Article 37 of the Criminal Act, Articles 342 and 364 of the Criminal Procedure Act

Supreme Court Decision 2010Do10985 Decided November 25, 2010 (Gong2011Sang, 78)

Defendant

Defendant and Prosecutor

Attorney Park Chang-chul

Seoul Western District Court Decision 2019No1299 decided December 2, 2019

The judgment below is reversed, and the case is remanded to the Seoul Western District Court.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

For the reasons indicated in its holding, the lower court convicted the Defendant of the part concerning the intrusion of the instant facts charged (excluding the part not guilty in the grounds of appeal). Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending

2. As to the Prosecutor’s ground of appeal

In a case where there are several orders of judgment, such as partial conviction, partial acquittal, or multiple charges charged for concurrent crimes under the former part of Article 37 of the Criminal Act, due to a final judgment rendered by imprisonment without prison labor or more severe punishment, and each of the several charges is rendered or not guilty is rendered separately or the sentence is determined, part of the charges may be appealed separately from other charges, and both parties shall not appeal. Accordingly, in a case where the first instance court, which rendered a verdict of innocence as to the part of the charges in concurrent crimes, has appealed as to the part of the charges in which the defendant and the prosecutor did not appeal, the part of the charges in which the defendant and the prosecutor did not appeal has become final and conclusive as the expiration of the appeal period, and the part of the charges in which the appellate court has not appealed should be reversed (see, e.g., Supreme Court Decision 2010Do10985, Nov. 25, 2010).

According to the records, ① the first instance court rendered not guilty of the violation of the Narcotics Control Act, among the facts charged in the instant case, (1) year and six months, and (2) the Defendant did not appeal against the judgment of the first instance, and only the prosecutor appealed against the acquittal portion in the judgment of the first instance, and ③ the lower court reversed all of the judgment of the first instance and sentenced all of the facts charged in the instant case to be sentenced to one year and eight months.

In light of the aforementioned legal principles, we examine the judgment of the court of first instance. The Defendant did not file an appeal against the judgment of the court of first instance, and the Prosecutor appealed only to the acquittal portion among the judgment of the court of first instance, and the judgment of the court of first instance became final and conclusive, and the judgment of the court of first instance continued to be rendered only the acquittal portion among the judgment of the court of first instance. Therefore, the court below should deliberate and determine only the acquittal portion among the judgment of the court of first instance.

3. Conclusion

Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jung-hwa (Presiding Justice)