In a case where: (a) the first instance court, which found the Defendant guilty of part of the facts charged in relation to concurrent crimes under the former part of Article 37 of the Criminal Act and acquitted the other part of the facts charged, did not state the grounds for appeal as to the acquittal portion while only the prosecutor appealed and did not state the grounds for appeal; but (b) the scope of appeal was indicated “total”, the case holding that the lower court should reverse the entire judgment of the first instance and sentence all the facts charged in relation to concurrent crimes as long as the lower court found the Defendant guilty of not guilty portion

Articles 37, 298 of the Criminal Act; Articles 82(1) and 88 of the Medical Service Act; Articles 342 and 364 of the Criminal Procedure Act

Defendant

Defendant

Seoul Eastern District Court Decision 2010No1264 decided December 9, 2010

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

The grounds of appeal are examined.

The Defendant’s ground of appeal is nothing more than criticism on the selection of evidence and fact-finding belonging to the lower court’s full power as a fact-finding court, and it cannot be a legitimate ground of appeal. In addition, even if examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, the lower court did not err in violation of logical and empirical rules and beyond the bounds of the principle

Furthermore, the decision is made ex officio.

According to the records, the first instance court rendered a judgment of conviction and the charge of indecent act by compulsion as to the violation of the Medical Service Act among the facts charged in the instant case, which are concurrent crimes under the former part of Article 37 of the Criminal Act, and only the prosecutor appealed against the judgment of the first instance court. The prosecutor did not state only the part not guilty in the grounds for appeal column in the petition of appeal and did not state the grounds for objection as to the guilty portion, but appealed to the whole judgment of the first instance.

In such a case, the whole judgment of the court of first instance, including the part convicted in the first instance trial, is subject to the judgment of the court below. As long as the court below acknowledged the guilty of indecent act by compulsion, the whole judgment of the court of first instance shall be reversed and the court below shall render a sentence on the violation of the Medical Service Act and the crime of indecent act by compulsion.

Nevertheless, the court below reversed only the non-guilty portion among the judgment of the court of first instance, and sentenced a separate sentence. The judgment below erred by misapprehending the legal principles on the subject of the appellate court's judgment or concurrent crimes under the former part of Article 37 of the Criminal Act, which affected the 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 Cha Han-sung (Presiding Justice)