The judgment below

The part against Defendant A is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. As to the grounds for appeal by Defendant A, “a crime for which judgment to face imprisonment without prison labor or heavier punishment has become final and the crime committed before such judgment has become final and conclusive” falls under concurrent crimes prescribed in the latter part of Article 37 of the Criminal Act. In such cases, the crime for which judgment has not been rendered among concurrent crimes under Article 39(1) of the Criminal Act and the crime for which judgment has not been made final and conclusive shall be sentenced to punishment on the relevant crime in consideration of equity and equity (see, e.g., Supreme Court Decisions 2009Do2066, May 14, 2009; 2015Do5257, Jun. 24, 2015). According to the records, Defendant A, during the trial of the first instance court of this case, can be seen as having been additionally prosecuted for Defendant A as Seoul East District Court Decision 2016Da18677, Jun. 24, 2015.

If, in a case where a public prosecution was instituted, the judgment imposing Defendant A’s imprisonment without prison labor or heavier punishment becomes final and conclusive, the crime of this case and the above separate crime for which judgment became final and conclusive constitutes concurrent crimes by group after Article 37 of the Criminal Act, and thus, the punishment for the crime of this case should be determined by applying Article 39(1)

Therefore, the lower court should have determined the punishment for the instant crime by taking account of the equity between the instant case and the case where a judgment was rendered in accordance with Article 39(1) of the Criminal Act, by examining whether the Defendant was sentenced to imprisonment without prison labor or heavier punishment and such judgment became final and conclusive.

Nevertheless, the lower court rejected Defendant A’s appeal without taking such measures, thereby maintaining the first instance judgment that determined the punishment without applying Article 39(1) of the Criminal Act.

The lower court erred by misapprehending the legal doctrine regarding Article 39(1) of the Criminal Act, or by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

2. On the grounds for the prosecutor’s appeal, the lower court, based on its stated reasoning, was on March 27, 2015 among the facts charged against Defendant D.