In a case where: (a) after the defendant was rendered a final and conclusive judgment of conviction as a crime of adultery, the Constitutional Court made a decision of constitutionality as to Article 241 of the former Criminal Code on October 30, 2008; (b) upon the decision of unconstitutionality as to February 26, 2015, the first instance court requested reexamination; (c) after the decision of new trial was rendered, the first instance court rendered a decision of acquittal by re-examination; and (d) the court below dismissed the defendant’s appeal; and (e) the court below dismissed the defendant’s appeal; and (e) the above decision of unconstitutionality as to Article 241 of the former Criminal Code should be pronounced not guilty, the case holding that the first instance

Article 241 of the former Criminal Act (amended by Act No. 13719, Jan. 6, 2016; hereinafter the same) (amended by Act No. 13719, Oct. 30, 208; hereinafter referred to as “former constitutional decision”) was rendered on Oct. 30, 208, and re-adjudication was requested on February 26, 2015. On the ground that the first instance court rendered a decision of commencing re-adjudication and rendered a judgment of acquittal pursuant to the instance court, and that the above decision of unconstitutionality as to Article 241 of the former Criminal Act should be ruled not guilty on the grounds that the above decision of unconstitutionality as to the crime should have been invalidated on the grounds that Article 47(2) proviso of the Criminal Procedure Act should have become unconstitutional on the grounds that Article 47(2) of the former Constitutional Court Act (amended by Act No. 12597, May 20, 2014; hereinafter referred to as “former decision of unconstitutionality of the Criminal Act”).

Article 241 of the former Criminal Act (Amended by Act No. 13719, Jan. 6, 2016); Article 47(2) of the former Constitutional Court Act (Amended by Act No. 12597, May 20, 201); Article 47(3) and (4) of the Constitutional Court Act; Article 47(3) of the Constitutional Court Act; Article 325 and Article 326 subparag. 4 of the Criminal Procedure Act

Defendant

Defendant

Seoul Northern District Court Decision 2019No1037 decided September 26, 2019

The appeal is dismissed.

The grounds of appeal are examined.

1. Details of the instant case

A. The Defendant was indicted on the charge that he followed the last order of October 1996, the first order of November 1996, the first order of March 1997, and the first order of June 197. The first instance court sentenced the suspended sentence of two years on July 8, 199 (hereinafter “instant judgment subject to a retrial”), the Defendant appealed and appealed, but all of the appeals were dismissed, and the instant judgment subject to a retrial became final and conclusive.

B. On October 30, 2008, the Constitutional Court decided that Article 241 of the former Criminal Act (amended by Act No. 13719, Jan. 6, 2016; hereinafter the same) does not violate the Constitution (hereinafter “previous constitutional decision”), but decided on February 26, 2015 that Article 241 of the former Criminal Act violates the Constitution (hereinafter “instant decision of unconstitutionality”).

C. After the decision of unconstitutionality of this case was rendered, the Defendant asserted that there exists a reason for retrial as stipulated in Article 47(4) of the Constitutional Court Act in the decision subject to a retrial. After the decision of unconstitutionality was rendered, the first instance court rendered a decision of commencing a retrial, and subsequently rendered a new trial according to the instance, and rendered a judgment of acquittal on the ground that Article 241 of the former Criminal Act, which had been effective at the time of the crime of this case, has retroactively lost its effect on the day following the date of the previous decision of constitutionality in accordance with the decision of unconstitutionality, and thus, constitutes “when punishment has been abolished due to the repeal of statutes

D. The lower court dismissed the Defendant’s appeal, and the Defendant appealed to the effect that the decision of unconstitutionality of Article 241 of the former Criminal Act as to Article 241 of the same Act ought to be pronounced not guilty and not guilty.

2. Judgment of the Supreme Court

As to the facts charged in this case, the lower court did not err in its judgment that maintained the first instance court’s judgment which rendered a judgment of acquittal as stipulated by Article 326 subparag. 4 of the Criminal Procedure Act, and thus, the Defendant’s ground of appeal cannot

A. The proviso of Article 47(2) of the former Constitutional Court Act (amended by Act No. 12597, May 20, 2014) provides that the Act or the provisions of the Act on Punishment, which was determined as unconstitutional, shall lose its effect retroactively and did not restrict its retroactive effect. However, the proviso of Article 47(3) of the amended Constitutional Court Act, supra, limits retroactive effect by setting the retroactive effect retroactively as of the day following the date on which the decision is made in cases where a previous case where the relevant Act or the provisions of the Act were constitutional, with respect to punishment, becomes invalid retroactively. Meanwhile, Article 326 subparag. 4 of the Criminal Procedure Act provides that “when a sentence is repealed due to the amendment of the Acts and subordinate statutes after a crime,” a judgment of acquittal shall

Therefore, in a case where the provision of a law or a provision applicable to a criminal act prior to the date of the previous decision of constitutionality became final and conclusive and retroactively loses its effect on the day following the date of the previous decision of constitutionality pursuant to the proviso of Article 47(3) of the Constitutional Court Act, the same applies to the case where the provision of a law or a provision in force at the time of the criminal act was repealed thereafter, and thus, the court should render a judgment of acquittal

B. Examining the facts in light of the aforementioned legal principles, the first instance court, which tried to judge the facts charged in the instant case, should render a judgment of acquittal pursuant to Article 326 subparag. 4 of the Criminal Procedure Act, since the date of the crime indicated in the facts charged in the instant case is prior to the date of the previous decision of constitutionality, and Article 241 of the former Criminal Act, becomes retroactively effective on October 31, 2008, following the date of the previous decision of constitutionality due to the decision of unconstitutionality of the instant case. The first instance court, which rendered a judgment of acquittal of the facts charged in the instant case, and the lower court’s measures maintaining it, are reasonable in accordance with the foregoing legal doctrine (the Supreme Court en banc Decision 2010Do5986 Decided December 16, 2010, which

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)