(영문) 광주고등법원 2013.7.25.선고 2013노120 판결

A. Even if there were grounds for retrial regarding the part on the violation of the Presidential Emergency Decree No. 9, which is part of the concurrent crimes against Defendant (legal scenarios), even if there was a decision to commence a retrial, its effect is limited to the part on the violation of the public law, which is the remainder of the violation of the public law, and thus, the court of the original instance should consider the violation of the public law by examining the violation of the public law. Although it is obvious that the Defendant’s act of violating the public law constitutes the free expression guaranteed by the Constitution, and it does not constitute the elements of the public law, it is obvious that the Defendant’s act of violating the public law constitutes the freedom of expression guaranteed by the Constitution. However, it is obvious that the lower court deliberated only to the extent necessary for sentencing while maintaining the judgment of conviction in accordance

(b) An inspection;

The suspension of sentence for two months of imprisonment by the court below is too unhued and unfair.

2. Determination

A. Judgment on the misapprehension of the legal principle of the defendant

In an indivisible final and conclusive judgment which found a person guilty of several facts constituting concurrent crimes and sentenced a single sentence to be guilty, if it is deemed that there exist only some facts constituting a crime among them, a decision to commence a new trial as to the whole of the judgments has been rendered formally. However, in light of the nature of the retrial system, the effect of the decision to commence a new trial as to facts constituting a crime for which there is no reason for a new trial exists, which is an emergency remedy, is included in the subject of a formal trial, the new trial court cannot reverse the conviction by conducting a new trial on that part. However, since the new sentence should be imposed on that part, it is only possible to deliberate only to the extent necessary for sentencing (see, e.g., Supreme Court Decision 96Do477, Jun. 14

In conclusion, the defendant's assertion is contrary to the purport and nature of the review system called "emergency relief system", and goes against legal stability, and re-examination of facts on the grounds that a criminal fact without any grounds for a retrial was sentenced to a single punishment in combination with the criminal facts for which there is no grounds for a retrial does not accord with equity when compared with the case where a separate punishment was imposed. In particular, considering the fact that there are grounds for a retrial and that there are no grounds for a retrial exist many individual cases, if there are no grounds for a retrial, it is more reasonable to maintain conviction in accordance with res judicata of a final and conclusive judgment unless there are substantial grounds for a request for a retrial. Therefore,

B. Judgment on the prosecutor's assertion of unfair sentencing

In full view of all the circumstances such as the status of the defendant at the time of the instant case and the background leading up to the statement of the facts charged, the contents of the statement and the other party who heard the statement, etc., it is not recognized that the lower court’s punishment is too uneasible and unreasonable. Therefore, the prosecutor’s aforementioned assertion

Conclusion

Therefore, the appeal filed by the defendant and the prosecutor is without merit, and all of them are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.