2016Do9101 Violation of the Aggravated Punishment, etc. of Specific Crimes (Larceny recognized)

Name of crime, habitual residence theft)

A

Prosecutor

Seoul Northern District Court Decision 2016No125 Decided May 27, 2016

October 31, 2019

The judgment of the court below is reversed, and the case is remanded to the Seoul Northern District Court Panel Division.

The grounds of appeal are examined.

1. Where a person who was sentenced to 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 previous trial"), even though the subsequent offense by the same damp wall was committed prior to the pronouncement of a new judgment on the judgment of new trial, the res judicata effect of the judgment on the subsequent offense does not extend to the subsequent offense. Furthermore, even in cases where the judgment on the subsequent offense was first sentenced prior to the pronouncement of a new judgment on the prior offense prior to the pronouncement of a new judgment on the judgment of new trial, the 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 2016Do7566, Jul. 25, 2019).

2. A. The record reveals the following facts.

1) On March 15, 2013, the Defendant was sentenced to two years of imprisonment, four years of suspension of execution, and two years of probation (hereinafter referred to as “the judgment on review of this case”) on the grounds that he habitually committed a crime of larceny and theft by means of committing the crime of larceny (hereinafter referred to as “prior offense”), and the judgment was finalized on March 23, 2013 at the Seoul Northern District Court (amended by Act No. 10210, Mar. 31, 2010; hereinafter referred to as “Special Crimes Aggravated Punishment Act”) by committing a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as “the Specific Crimes Aggravated Punishment Act”).

2) On January 30, 2015, the Defendant was sentenced to imprisonment with prison labor for one year and six months for a crime that habitually steals property at the Seoul Northern District Court on November 1, 2014 and on December 8, 2014 (hereinafter “instant subsequent offense”), and the said judgment became final and conclusive on February 7, 2015.

3) Meanwhile, the Constitutional Court determined that Article 329 of the Criminal Act is unconstitutional, among Article 5-4(1) of the Specific Crimes Aggravated Punishment Act, which was applied to the instant judgment subject to a retrial.

(The Constitutional Court Decision 2014HunGa16, Feb. 26, 2015, etc.). Accordingly, the Defendant filed a petition for a retrial on the instant judgment subject to a retrial and received a decision of commencing a retrial on Nov. 5, 2015, and the first instance court, which is the cause of a 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 extends to the preceding 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

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.

Supreme Court Decision 200

Justices Park Sang-ok

Justices Noh Jeong-hee

Justices Kim Jae-hwan in charge