[1] The scope of binding force of the criminal case remanded

[2] The case holding that after the whole judgment of the court below was reversed and remanded on the ground of illegality in the part of confiscation, the order of the court below's change in the principal sentence cannot be viewed as a violation of the binding force of the judgment of the remanded case

[1] The court to which the case was remanded from the court of final appeal shall, in its judgment on the case, be bound to the extent that the court of final appeal presents new evidence in the trial process after remanding the case, and there is no change in the relation of evidence which forms the basis of continuous judgment.

[2] The case holding that after the whole judgment of the court below was reversed and remanded on the ground of illegality in the part of confiscation, the order of the court below after the remand cannot be deemed to violate the binding force of the judgment of the remanded case

[1] Article 8 of the Court Organization Act, Article 436 (2) of the Civil Procedure Act / [2] Article 8 of the Court Organization Act, Article 436 (2) of the Civil Procedure Act

[1] Supreme Court Decision 95Do830 decided Dec. 10, 1996 (Gong1997Sang, 444) Supreme Court Decision 2001Do1314 decided Feb. 26, 2003 (Gong2003Sang, 946)

Defendant

Prosecutor

Attorneys Choi Han-chul et al.

Supreme Court Decision 2003Do301 Delivered on March 25, 2003

The appeal is dismissed.

The court to which the case was remanded from the court of final appeal is bound by the court of final appeal, unless there is a change in the relation of evidence, which forms the basis of continuous judgment, by presenting new evidence in the course of the review after remanding the case, with respect to the factual and legal judgment as the ground for reversal (see Supreme Court Decision 95Do830 delivered on December 10, 196). The grounds of final appeal are as set out in the grounds of final appeal.

However, in the case of this case, the defendant appealed against the judgment of the court of first instance prior to the remand, and this court’s decision was reversed in its entirety and remanded to the court of first instance solely on the ground that the court below maintained the part relating to the confiscation punishment among the judgment of first instance prior to the remand was unlawful. Thus, unlike the case where the court below rejected the defendant’s appeal and maintained the judgment of first instance which sentenced the suspension of the execution of imprisonment to the defendant, it cannot be deemed that the court below reversed the judgment of first instance after the remand and sentenced the defendant to a fine. This part of the judgment of first instance after the remand does not conflict with the binding force of the judgment of

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)