Defendant

Prosecutor

Bindings (prosecutions) and Escopical or opticals (public trial)

Daegu District Court Decision 2017 Inventory 37 Decided September 7, 2017

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

A. Legal principles

While the Defendant repeated a crime during the period of probation set forth in the judgment subject to a retrial and was punished by imprisonment for the invalidation of the suspended sentence, the judgment of the court below did not become final and conclusive, but rather becomes final and conclusive as the date of the final judgment of the court below, and thus, the grounds for the execution of the sentence against the Defendant become final and conclusive, thereby impairing the stability of the execution of the punishment, and thus, is unlawful. Furthermore, the judgment of the court below’s initial date of the suspended sentence is contrary to the principle

B. Unreasonable sentencing

The sentencing of the court below (two years of imprisonment with prison labor and six months of suspended execution) is too unhued and unfair.

2. Determination

A. Judgment on the misapprehension of legal principles

1) Relevant legal principles

Article 420 and Article 421(1) of the Criminal Procedure Act provides that a retrial may be requested for the benefit of a person who has been rendered a final judgment of conviction and a final judgment dismissing an appeal or final judgment of dismissal thereof, thereby allowing only so-called “the benefit of the defendant” (Article 420 and Article 421(1)). Article 439 of the Criminal Procedure Act provides that “re-adjudications shall not be sentenced more severe than that of the original judgment,” which merely means the principle that no sentence heavier than that of the original judgment cannot be sentenced, but rather, the purport of the provision that re-adjudications shall be conducted to the extent that it does not undermine the legal stability of the defendant.”

However, a retrial proceeding is not a follow-up procedure of the previous litigation procedure examining the propriety of the original judgment, but a complete new litigation procedure to decide the case itself from the beginning, and the original judgment becomes final and conclusive, and the original judgment becomes null and void as a matter of course. This is derived from the inherent nature of a retrial to reverse legal stability maintained by the final and conclusive force of the judgment in order to realize a specific justice in a case where there is a serious defect in the final and conclusive judgment. Therefore, once a new judgment becomes final and conclusive, the effect of the original judgment or its incidental disposition becomes null and void due to the invalidation of the original judgment’s original judgment’s legal effect and its incidental disposition, is natural in light of the inherent nature of retrial, and thus, it does not mean that even if the Defendant

Therefore, even in cases where a new judgment with a new punishment has been rendered after the suspension period without invalidation or cancellation of the execution period in which the original judgment was rendered, the effect of the sentence in the original judgment becomes invalidated due to the expiration of the suspension period is the legal effect of the execution of the execution period in itself, on which the original judgment was rendered, and the original judgment becomes null and void as a matter of course after the conclusion of the new judgment becomes final and conclusive, and thus, it cannot be viewed as having been identical to the execution of the sentence. Even if the legal effect of the suspension of execution becomes null and void due to the final and conclusive judgment upon the conclusion of the new judgment, if the punishment of the new judgment is no longer heavier than that of the original judgment, then it cannot be deemed as contrary to the principle of prohibition of disadvantageous alteration or the principle of review of profits (see, e

2) In the instant case:

Examining the following circumstances in light of the aforementioned legal principles, the lower court did not err by misapprehending the legal doctrine, thereby affecting the conclusion of the judgment.

① While the Defendant repeated a crime during the period of the stay of execution, which was determined by the judgment of the lower court, which was a new judgment, and sentenced to a suspended sentence, the date on which the lower judgment became final and conclusive, and thus the judgment becomes final and conclusive, the occurrence of a situation in which the suspension of execution will be revoked if the said judgment becomes final and conclusive. However, even if the effect of a suspended sentence, which was rendered by the judgment subject to a new judgment, becomes null and void upon the final and conclusive judgment of the lower court, becomes void even if the effect of the judgment becomes final and conclusive

② Even if a new sentence is determined in the judgment of the court below, which is a new judgment, and a suspended sentence, which serves as the initial date on which the judgment of the court below became final and conclusive, the effect of the original judgment or its incidental disposition becomes null and void as a result of the final judgment becomes final and conclusive, and thus, the effect of the original judgment or its incidental disposition becomes null and void is natural in light of the inherent nature of the retrial. As such, even if the Defendant was at any disadvantage due to the loss of the effect of the original judgment in itself, it does not constitute a violation of the legal status of the Defendant, which should be protected in the retrial. Furthermore, even if the prosecutor’s practical precedent on the calculation of the period of the suspended sentence, even if a new suspended sentence is rendered at the new judgment after the suspended sentence was rendered, the period of the suspended sentence based on the previous final and conclusive judgment should be deemed as effective execution, and thus, it does not go against the principle of prohibition of disadvantageous alteration or the principle of retrial on benefit and interest.

B. Determination on the assertion of unfair sentencing

The Defendant committed the instant crime even though he had the same criminal records, such as drinking and driving without a license, and was sentenced to a suspended sentence in the judgment subject to a suspended sentence, and committed a crime again during the suspended sentence period.

However, in full view of the various circumstances that are conditions for sentencing, such as Defendant’s age, character and conduct, environment, family relationship, motive, background, means and consequence of the crime, and circumstances after the crime, including the fact that the victim does not want the punishment of Defendant, and that there are no special circumstances or changes in circumstances that make it possible to change the sentencing of the lower court after the crime, the sentencing of the lower court is unreasonable.

3. Conclusion

Since the prosecutor's appeal is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act.

Judges Gangnam-ho (Presiding Judge)