Defendant

Defendant

Class A prosecution (prosecution) and Kim Jong-young (Trial)

Law Firm Manan, Attorney Cho Dong-hee

Seoul Central District Court Decision 2015 Inventory 26-1 (Separation) Decided May 29, 2015

The defendant's appeal is dismissed.

1. Progress of litigation;

A. Determination of the original judgment (Seoul Central District Court Decision 2007Da7366 Decided January 15, 2009)

This Court sentenced the defendant on January 15, 2009 to a one-year suspension of execution of imprisonment with prison labor for the defendant on January 15, 2009, and the above judgment became final and conclusive on January 23, 2009, by applying Article 241(1) of the Criminal Act, with respect to the criminal facts that the defendant committed eight times in total from January 13, 2005 to May 7, 2006, and the criminal facts that the defendant injured his spouse on November 10, 2003 and on November 11, 2006.

B. Constitutional Court's decision of unconstitutionality

On February 26, 2015, the Constitutional Court decided that Article 241 of the Criminal Code is unconstitutional (201Hun-Ga31, etc.).

C. Decision of commencing a retrial and rendering a judgment by the court below

On March 17, 2015, according to the Constitutional Court Act Article 47(3) and (4) of the Constitutional Court Act, the lower court decided to commence a retrial on April 16, 2015.

On May 29, 2015, the lower court sentenced the Defendant on May 29, 2015, sentenced the Defendant not guilty on the grounds that penal provisions have lost its effect due to the decision of unconstitutionality, and sentenced a fine of KRW 4 million to the charges of bodily injury.

2. Summary of the grounds for appeal;

A. Violation of the principle against double Jeopardy

The term of suspended sentence for one year, which was sentenced to a judgment subject to a retrial, includes a two-year term of suspended sentence. However, the Defendant terminated the execution of a sentence for bodily injury as the period of suspended sentence for the judgment subject to a retrial, which was already finalized, exceeds the period of suspended sentence.

Nevertheless, it is against the principle of res judicata under the Constitution that the court below again imposed a fine on the crime of injury and executed a sentence.

B. Violation of the principle of prohibition of disadvantageous alteration

It cannot be deemed that the sentence of the lower judgment would be disadvantageous if compared to the punishment of a fine prescribed by the lower judgment for one year, which is one year of suspension of execution, stipulated in the judgment subject to a retrial.

However, the defendant had already been subject to suspended execution and the risk of execution of the judgment subject to a retrial has disappeared. In other words, the defendant's execution of a fine of KRW 4 million was considered as a whole and substantially, and the defendant's execution of a fine of KRW 4 million was changed to a disadvantage compared to the previous one.

Therefore, the court below's sentencing a fine to the defendant is against the principle of prohibition of disadvantageous change.

3. Determination

A. As to the assertion of violation of the prohibition against double Jeopardy

When a decision to commence a new trial becomes final and conclusive, the new trial court shall conduct a new trial on the case subject to a new trial according to its instance (Article 438(1) of the Criminal Act), and after closing the new trial, it shall conduct a new trial as a final and conclusive judgment according to its instance. Since the final and conclusive judgment becomes final and conclusive, the original judgment subject to new trial becomes null and void. Thus, the judgment subject to new trial is merely a temporary maintaining its effect for execution of punishment and incidental disposition rendered in the judgment subject

In addition, in a case where a new trial was decided on the commencement of a new trial as to a crime for which no grounds for new trial exist, the new trial court is required to render a new sentencing for a crime for which there is no grounds for new trial. However, in a case where a new trial was conducted, the new trial court cannot be deemed to violate the principle of prohibition of double punishment under the Constitution, provided that the principle of prohibition of disadvantageous changes is applied, and no more severe punishment than that of the original judgment is imposed (see Supreme Court Decision 2014Do10193, Nov. 13, 2014).

Although recognizing the above legal doctrine, the Defendant asserts that the instant case “the period of suspended execution” goes against the principle of res judicata, the Defendant’s assertion that the instant case goes against the principle of res judicata, there is no room to constitute a violation of the principle of res judicata, in itself, which is the issue of the formal validity of the punishment, even if the substantive reason is separate from the point of view

This part of the defendant's assertion is without merit.

B. As to the assertion of violation of the principle of prohibition of disadvantageous alteration

In reopening of procedure, no penalty heavier than that pronounced in the original judgment shall be imposed (Article 439 of the Criminal Procedure Act).

The principle of prohibition of disadvantageous alteration is to guarantee the defendant's right to appeal. In the higher court, etc. appealed only for the defendant or for the defendant, the court, in which only the defendant appealed, does not sentence more severe punishment than punishment already sentenced for the same criminal facts. In applying the principle of prohibition of disadvantageous alteration, the court should not consider the order individually and formally, but should consider the whole and substantial aspects and determine the severity thereof. Whether a sentence imposed has been modified disadvantageous to the defendant is based on the seriousness of the criminal punishment under the Criminal Act, and it should be determined by the substantial disadvantage of the defendant, considering the whole order, such as both concurrent and additional punishment, suspended sentence, and period of detention in the workhouse (see, e.g., Supreme Court Decision 2012Do7198, Dec. 12, 2013).

However, the subject of a full and substantial examination as above does not take into account the order of the sentence itself (or its execution possibility), and the process of actual execution after the sentence becomes final and conclusive. For example, where the sentence of imprisonment for life is reduced to a limited term of 20 years after the sentence of imprisonment for life became final and conclusive in the judgment subject to a retrial, the effect of the special reduction is merely merely a sentence imposed by the order of the prison institution to execute the mitigated sentence by issuing the sentence. It does not change the sentence itself, but it does not change the sentence itself. Since the sentence of imprisonment for life cannot affect the effect of the final and conclusive judgment and the effect of the execution of the sentence already executed, it cannot be said that such a sentence violates the principle of prohibition of disadvantageous change (see Supreme Court Decision 64Do690, Mar. 22, 1965).

In addition, the fact that a defendant was found after the judgment for retrial became final and conclusive is not “execution of sentence,” but only a legal effect upon the passage of time (al.e., loss of the effect of sentence), and the retroactive re-explation of such legal effect is bound to result in the nature of the retrial system that makes the final and conclusive judgment lose its effect again. For instance, even if a suspended sentence is rendered for a period shorter than the suspended sentence stipulated in the judgment for retrial, a new judgment was rendered once the judgment for retrial became final and conclusive, and thus, the period of the suspended sentence begins from the date when the new judgment becomes final and conclusive, and the issue of whether the suspended sentence was

This part of the defendant's assertion is without merit.

3. Conclusion

Since the appeal by the defendant is groundless, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Cho Dong-dong (Presiding Judge)