[1] The binding force of the judgment of remanding a case where the previous appellate court rejected the argument in the grounds of appeal on the grounds of appeal

[2] The scope of a trial by the court of final appeal and the scope of grounds for appeal by the defendant

[3] The case reversing the judgment of the court below on the ground that there was an error of law affecting the conclusion of the judgment where the court below acquitted the part of the facts charged and omitted the order and sentenced one punishment for the other facts in a substantive concurrent relationship, and omitted the statement of facts in the facts charged

[1] Article 397 of the Criminal Procedure Act / [2] Articles 364 and 384 of the Criminal Procedure Act / [3] Article 396 of the Criminal Procedure Act

[1] Supreme Court Decision 2005Do1247 Decided October 28, 2005 (Gong2005Ha, 1899), Supreme Court Decision 2006Do920 Decided May 11, 2006 (Gong2006Sang, 1097) / [2] Supreme Court Decision 2006Do2104 Decided June 30, 2006, Supreme Court Decision 2006Do8690 Decided March 15, 2007

Defendant

Defendant

Supreme Court Decision 2006Do7828 Decided May 29, 2008

Daejeon District Court Decision 2008No1321 Decided September 11, 2008

Of the judgment of the court below and the judgment of the court of first instance, the part against the defendant shall be reversed. The defendant shall be punished by imprisonment with prison labor for eight months: Provided, That the execution of the above punishment shall be suspended for two years from the date this judgment became final and conclusive. The crime of occupational embezzlement on November 22, 2001 under paragraph (2) of the

The grounds of appeal are examined.

1. Judgment on the grounds of appeal

The part rejected by the court of final appeal on the ground that the argument in the grounds of final appeal is groundless shall not be contested by the defendant with the adjudication at the same time as the adjudication at the court of final appeal, and the court remanded shall not make any decision contrary thereto (see Supreme Court Decisions 87Do2111, Dec. 22, 1987; 2006Do920, May 11, 2006; 2006Do920, May 11, 2006; etc.). Since the court of final appeal is ex post facto review of the judgment at the appellate court, matters not subject to adjudication at the appellate court are not within the scope of the adjudication at the court of final appeal. Thus, it cannot be asserted as the grounds other than those for which the defendant did not claim as the grounds of final appeal at the appellate court or the appellate court is subject to adjudication ex officio (see, e.g., Supreme Court Decisions 9Do2831, Mar. 28, 2000; 205Do36.).

In light of the above legal principles and the records, the assertion that the defendant did not participate in the embezzlement of each embezzlement under paragraph (1) of the facts charged in this case and did not intend to commit embezzlement was rejected in the previous final appeal court, and the assertion that the actual victim of each embezzlement in this case is the spouse of the defendant, and thus, should be exempted from punishment. Thus, it cannot be said that the defendant did not have asserted as a reason for appeal in the court below prior to remand.

2. Ex officio determination

A. According to the records, the court below reversed the judgment of the court of first instance which found the Defendant guilty of all the facts charged of this case. After the remanding, the court below did not indicate the facts charged of this case as not guilty on the ground of paragraph (2) of this case, but did not indicate it in the order. The court below found the Defendant guilty as to paragraph (1) of this case's facts charged of this case in accordance with the purport of the judgment of remand, but omitted the statement as to paragraph (e) of this case's facts charged.

B. Therefore, the judgment of the court below is reversed, but this case’s records and the evidence adopted by the court of first instance are deemed sufficient for this court to render self-determination, and thus, it is decided directly by Article 396 of the Criminal Procedure Act.

The summary of the grounds for appeal by the defendant is that the defendant did not participate in the crime under Paragraph (1) of the facts charged and Paragraph (2) of the facts charged are not a crime, but the judgment of the court of first instance which found the defendant guilty is unfair, and even if not, the punishment of the court of first instance is too unreasonable.

First, as to the facts charged under paragraph (1) of this Article, since the judgment of remand rejected the defendant's assertion of misunderstanding the facts, it cannot be judged differently, and therefore, this part of the appeal cannot be accepted

Furthermore, as to the facts charged, the summary of this part of the facts charged is that “The Defendant and Nonindicted Party 1 used the apartment price purchased under the joint name and embezzled it as the apartment price purchased by the Defendant and Nonindicted Party 1 on November 23, 2001, in collusion with Nonindicted Party 2, who was in charge of the management of support payments of the said supporters’ association, as well as the secretary general, in collusion with Nonindicted Party 1 and Nonindicted Party 2, who was in charge of the management of support payments of the said supporters’ association.”

However, it is natural to contribute money and goods to a member of the National Assembly established under the former Political Fund Act (amended by Act No. 6516, Sep. 27, 2001). The purpose of establishing a supporters' association and the act of contributing money and goods collected to a member of the National Assembly is also measures prescribed by the aforementioned Act. Since the act of a person in charge of accounting of a supporters' association contributed money and goods to a member of the National Assembly is also measures in accordance with the purpose of establishing a supporters' association and the above Act, it cannot be deemed that a person in charge of accounting of a supporters' association embezzled such act as being contrary to the purpose of keeping the money and goods collected to a member of the supporters' association. In addition, even if a person in charge of accounting of a supporters' association becomes aware that he/she used the money and goods for private expenses or illegal purposes in violation of Article 2(3) of the above Act in the course of delivering the money

Ultimately, since the above facts charged constitute a case that does not constitute a crime, it should be pronounced not guilty pursuant to the former part of Article 325 of the Criminal Procedure Act, and the judgment of the court of first instance which made a different judgment shall be deemed unlawful. Since the court of first instance rendered a single sentence in view of this part of the remaining conviction and the relation between concurrent crimes under the former part of Article 37 of the Criminal Act, the whole judgment

Therefore, the judgment of the first instance court is reversed and it is again decided as follows.

The criminal facts of the defendant who is found guilty by the court of first instance are as stated in the criminal facts of the judgment of the court of first instance, and the summary of evidence is as stated in the corresponding column of the judgment of the court of first instance. Thus, each act of the defendant in the judgment constitutes Articles 356, 355(1), and 30 of the Criminal Procedure Act. Furthermore, since the defendant does not have the identity of a person in charge of occupational custody, the defendant does not have the status of a person in charge of occupational custody, so the defendant shall be punished under the proviso of Article 33 and Article 50 of the Criminal Act, and the defendant shall be punished under Article 35(1) of the Criminal Act, so the defendant shall be punished under the proviso of Article 33 of the Criminal Act, Article 37, the former part of Article 38(1)2, and Article 50 of the Criminal Act shall be punished by imprisonment with prison labor among the prescribed punishment, and the sentence against the defendant shall be determined within the scope of the punishment imposed by concurrent crimes as stated in Article 1-2 of the Criminal Act.

Since the part concerning occupational embezzlement under paragraph (2) of the facts charged of this case constitutes a case that does not constitute a crime on the grounds as seen earlier, an acquittal shall be pronounced pursuant to the former part of Article 325

3. Conclusion

Therefore, the judgment of the court below and the judgment of the court of first instance are reversed, and it is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)