[1] In a case where only the Defendant appealed on the convicted part of the judgment of the first instance, which determined two punishments by separately sentencing the facts charged prior to the final and conclusive judgment and facts charged after the final and conclusive judgment, the scope of the appellate court’s deliberation and determination (=the convicted part before the final and conclusive judgment)

[2] In a case where the first instance judgment, which sentenced the Defendant to a suspended sentence of 2 years of imprisonment with prison labor and 2 years of imprisonment with prison labor for the crime of fraud committed before and after the final judgment became final and conclusive, only the Defendant appealed against the fraudulent part which was committed before the final and conclusive judgment, the case holding that the lower court erred in its dismissal of Defendant’s appeal against the crime of violation of the Management of Mountainous Districts Act by a new trial on the part of the crime of violation of the Management of Mountainous Districts Act, and that part of the judgment below is reversed, but it cannot be remanded to the lower court, and that the

[1] In a case where there are several different types of facts charged for concurrent crimes under the former part of Article 37 of the Criminal Code, the partial conviction, the acquittal of part of the charges, or the several facts charged are before and after the final judgment sentenced to imprisonment without prison labor or more severe punishment. Thus, in a case where there exist several rulings under the latter part of Article 37 and Article 39(1) of the Criminal Code, the part included in the one part may be separately appealed from other parts, and the part for which both parties have not appealed shall be separately decided. Therefore, in a case where only the Defendant appealed against the part of the first instance judgment, which separately sentenced the facts charged prior to the final judgment and the facts charged after the final judgment, the part of the final judgment which was not appealed by the Defendant and the prosecutor becomes final and conclusive, and the scope of the appellate court’s deliberation and judgment shall be limited to the part of the conviction before the final judgment.

[2] In a case where the first instance court, which sentenced the defendant to a suspended sentence of two years for the crime of fraud committed before and after the final judgment became final and conclusive, appealed only to the fraudulent part which is the crime committed before and after the final and conclusive judgment, such as violation of the Mountainous Districts Management Act, which was sentenced to a suspended sentence of two years for the crime committed after the final and conclusive judgment, the case holding that the court below should have deliberated and determined only the fraudulent part, and even if the defense counsel stated the grounds for appeal as to the part of violation of the Mountainous Districts Management Act which was already final and conclusive after the final and conclusive judgment, the part of the judgment below which dismissed the defendant's appeal as to the above part cannot be subject to deliberation and determination by the lower court, on the ground that the court below erred by misapprehending legal principles as to the scope of deliberation and determination by the appellate court, but this part cannot be remanded to the lower court on the ground that it was not subject to a final and conclusive judgment, and it is sufficient for the appellate court to reverse it.

[1] Articles 37 and 39(1) of the Criminal Act; Articles 342 and 364 of the Criminal Procedure Act / [2] Articles 37 and 39(1) of the Criminal Act; Articles 342 and 364 of the Criminal Procedure Act

[1] Supreme Court en banc Decision 2010Do14328 Decided June 20, 2013 (Gong2013Ha, 1399) Supreme Court Decision 2015Do8232 Decided August 19, 2015

Defendant

Defendant and Prosecutor

Daejeon District Court Decision 2016No1089 Decided October 27, 2016

The guilty part of the judgment of the court below is reversed. The prosecutor's appeal is dismissed.

The grounds of appeal are examined.

1. As to the prosecutor's grounds of appeal

Examining the reasoning of the lower judgment in light of the evidence duly admitted, it is justifiable for the lower court to reverse the judgment of the first instance that found the Defendant guilty on the charge of fraud among the facts charged in the instant case and to have not been proven of the crime. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent

2. As to the Defendant’s ground of appeal

In a case where there are several orders of judgment under the latter part of Article 37 and Article 39(1) of the Criminal Act, the part included in one order may be separately appealed from other parts, and the part in which both parties have not appealed shall be separately decided. Therefore, in a case where only the Defendant appealed on the part of the judgment of the first instance which was sentenced guilty of the facts charged prior to the final judgment and the facts charged after the final judgment, and only the Defendant appealed on the part of the final judgment prior to the final judgment, the part of the judgment of the court of first instance which became final and conclusive after the final judgment became final and conclusive after the lapse of the period of appeal becomes final and conclusive. Accordingly, the scope of deliberation and determination by the appellate court is limited to the part of the judgment prior to the final and conclusive judgment (see, e.g., Supreme Court en banc Decision 2010Do14328, Jun. 20, 2013; Supreme Court en banc Decision 2015Do32815, Aug. 28, 2015).

According to the reasoning of the lower judgment and the record, the Defendant was indicted on June 14, 201, ① on the following facts: (a) the Seoul Southern District Court sentenced the Defendant to a suspended sentence of two years and a fine of 15 million won for a violation of the Punishment of Tax Evaders Act for six months on June 14, 2012; (b) the Defendant was prosecuted for fraud (2) and violation of the Mountainous Districts Management Act; (c) violation of the Real Estate under Actual Titleholder’s Name Act; and (d) violation of the Registration of Real Estate under Actual Titleholder’s Name Act (hereinafter “Violation of the Mountainous Districts Management Act, etc.”); (e) the first instance court convicted the Defendant of all the above charges; (e) violation of the Mountainous Districts Management Act, which is the criminal facts before the said final judgment; and (e) the prosecutor did not appeal against the judgment of the first instance; and only the Defendant appealed the part concerning fraud; and (e) the lower court rejected the part concerning the Defendant’s appeal on the grounds of unfair sentencing as to the part on the appeal.

Examining these circumstances in light of the aforementioned legal principles, in this case where a prosecutor did not file an appeal, and only the defendant appealeds against a fraud, which is a crime committed before the final judgment in the first instance judgment, the part of the charge of violating the Mountainous Districts Management Act, which is a crime after the final judgment, becomes final and conclusive by the expiration of the appeal period, and only fraud part was continued in the original judgment. Thus, the lower court should have deliberated and determined only fraud part. Even if the defense counsel stated reasons for appeal on the part of the violation of the Mountainous Districts Management Act, the part of the violation of

Nevertheless, the lower court re-examineed the part of the crime of violation of the Mountainous Districts Management Act, etc. which became guilty and dismissed the Defendant’s appeal regarding the above part by judgment. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of the appellate court’s deliberation and determination

3. Conclusion

Therefore, among the judgment below, the guilty portion of the judgment of the court below is reversed (Provided, That this part is not subject to the judgment of the court below since it has been already determined and thus, it cannot be remanded to the court below, and it is sufficient that this court reverses it), and the prosecutor's appeal as to the acquittal portion is dismissed. It

Justices Ko Young-han (Presiding Justice)