[1] In a case where a judgment of conviction becomes final and conclusive for a part of multiple criminal facts which are related to a comprehensive crime as a habitual offender, the elements for a judgment of acquittal for the remaining crimes which were committed before a judgment of facts in the final and conclusive judgment is rendered

[2] In a case where a judgment becomes final and conclusive after being prosecuted as a non-Habitual offender, whether the validity of the previous final and conclusive judgment can be changed to a judgment on a "Habitual offender" in addition to other criminal facts or other circumstances revealed later (negative)

[3] The case holding that the judgment below erred in the misapprehension of legal principle on the ground that res judicata of a final judgment of conviction against "a simple fraud" did not constitute an offense of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), which was committed before the judgment of the court below was rendered

[1] Articles 248 (2) and 326 subparagraph 1 of the Criminal Procedure Act / [2] Article 326 subparagraph 1 of the Criminal Procedure Act / [3] Article 347 of the Criminal Act, Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 326 subparagraph 1 of the Criminal Procedure Act

[1] [2] Supreme Court en banc Decision 2001Do3206 Decided September 16, 2004 (Gong2004Ha, 1684) / [1] Supreme Court Decision 2005Do3963 Decided October 28, 2005, Supreme Court Decision 2006Do7864 Decided June 29, 2007, Supreme Court Decision 2009Do12627 Decided February 11, 2010 (Gong2010Sang, 604)

Defendant

Prosecutor

Attorney Kang Jin-jin

Seoul High Court Decision 2009No1974 decided January 29, 2010

The judgment below is reversed, and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. In a case where a judgment of conviction has become final and conclusive on a part of several of the facts constituting a comprehensive crime as a habitual offender, if a new prosecution has been instituted on the remaining crimes committed prior to the judgment of facts in the final and conclusive judgment, that new prosecution is to be instituted on the same case as the case in which the final and conclusive judgment was rendered, and thus, a judgment of acquittal shall be rendered (Article 326 subparagraph 1 of the Criminal Procedure Act). However, in order to apply such a legal doctrine, the relevant defendant needs to be prosecuted and sentenced as a habitual offender at the final and conclusive judgment before the final and conclusive judgment in the final and conclusive judgment, and in a case where he is committed as a basic crime not for a habitual offender, it shall be deemed that the final and conclusive judgment is a final and conclusive judgment on the part of the habitual offender, and it shall not be deemed that the res judicata effect is a final and conclusive judgment on the part of the final and conclusive judgment before the judgment of facts.

In determining the scope of res judicata effect of a final and conclusive judgment, it is in principle based on the name and criminal facts of the final and conclusive case itself, and as long as the judgment is finalized after being charged with non-Habitual crimes, it shall be deemed that the crime of the relevant case is an offense constituting the basic constituent element, not a habitual offender. In addition to other criminal facts and other circumstances revealed later, applying the effect of the final and conclusive judgment to a judgment on a habitual offender, which is heavier than that of the prosecutor’s indictment, is not appropriate in light of the basic principles of criminal procedure (see, e.g., Supreme Court en banc Decision 2001Do3206, Sept. 16, 2004; Supreme Court Decision 2009Do12627, Feb. 11, 2010).

2. A. According to the reasoning of the judgment below, where a crime is naturally expected to be repeated due to the nature of the elements of the crime, such as the case where a habitual offender has the nature of a business offender or an occupational offender, the court below, even in the preceding case, where such act is committed as a crime of basic elements other than a habitual offender, and even if such act is committed in the preceding case, the previous final judgment is deemed to be a final judgment on part of a habitual offender, and the res judicata effect was deemed to affect the remaining crimes before the judgment of the court of fact, and dismissed the prosecutor’s appeal.

B. However, according to the records, the defendant was convicted of concurrent crimes with the crime of violating the Act on the Regulation of Conducting Fund-Raising Business without Permission and the crime of simple fraud in the preceding case. According to the above legal principles, res judicata of the above final judgment on simple fraud does not affect the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud).

Nevertheless, the lower court erred by misapprehending the legal doctrine on the scope of res judicata effect of a final and conclusive judgment, thereby adversely affecting the conclusion of the judgment. The prosecutor’s assertion pointing this out is with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)