2016Do10418 no accusation

A person shall be appointed.

Defendant

Attorney B (Korean National Assembly)

Incheon District Court Decision 2016Do1443 Decided June 24, 2016

September 8, 2016

The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.

The grounds of appeal are examined.

1. According to Articles 157 and 153 of the Criminal Act, in a case where a person who commits an accusation under Article 156 of the Criminal Act surrenders himself/herself to a court before a judgment or a disciplinary measure on the reported case becomes final and conclusive, the confession prior to such a final and conclusive judgment constitutes grounds for the requisite mitigation or exemption of punishment. As such, the confession prior to such a final and conclusive judgment constitutes grounds for the requisite mitigation or exemption of punishment. Since there is no legal restriction as to the procedure of confession, the confession is included in the concept of confession by a court or an investigative agency as the accused or suspect of the accusation case included in the concept of confession (see Supreme Court Decisions 2004Do831, Apr. 9, 2004; 2012Do2783, Jun. 14, 2012).

2. According to the records, the Defendant made a statement to the effect that all of the facts charged in the instant case were denied in the first instance court, but the first instance court, which found the Defendant guilty, stated that all of the facts charged in the statement of grounds for appeal, while appealed from the judgment of the first instance court, and stated that all of the facts charged are recognized during the first instance trial of the lower court, thereby making a statement to the effect that he/she made a confession. Thus, the Defendant ought to be given requisite mitigation or exemption of punishment pursuant to Articles 157

Nevertheless, the lower court did not take such measures. In so determining, the lower court erred by misapprehending the legal doctrine on the confession, which is a necessary cause of reduction or exemption of punishment, thereby adversely affecting the conclusion of the judgment.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below 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 Sang-hoon

Justices Kim Jae-tae

Justices Jo Hee-de

Justices Park Sang-ok