[1] In a case where the military court that received the request for retrial did not have jurisdiction but later transferred the case to a general court after the decision to commence a retrial was rendered, whether the court to which the case was transferred can proceed with the subsequent procedure by deeming the decision to commence a retrial of the military court as effective (affirmative)

[2] Whether a final judgment of conviction that lost the effect of a sentence due to special amnesty constitutes "final judgment of a crime of oil" under Article 420 of the Criminal Procedure Act and can be subject to a request for retrial (affirmative)

[3] The meaning of “Amnesty” under Article 326 subparag. 2 of the Criminal Procedure Act, which is the ground for acquittal judgment (=general amnesty)

[1] [Majority Opinion] Inasmuch as the procedure for commencing a new trial as well as the procedure for commencing a new trial cannot be deliberated and tried without jurisdiction, a military court that received a request for a retrial shall first examine whether jurisdiction exists and, if determined that there is no jurisdiction in the military court, immediately transfer the case to the general court of the same instance pursuant to Article 2(3) of the Military Court Act.

On the contrary, if a case is transferred to a general court after a ruling of commencing a retrial was rendered even though the military court does not have jurisdiction, it is an unlawful exercise of jurisdiction. However, the latter part of Article 2(3) of the Military Court Act provides that “In this case, litigation conducted before the transfer shall have no effect on the validity thereof even after the transfer.” Thus, the general court to which the case was transferred cannot proceed again from the beginning, and may proceed with the subsequent procedure by deeming that the ruling of commencing a new trial by the military court

[Dissenting Opinion by Justice Kim Chang-suk] Even though it is evident that there was no jurisdiction over a military court as to a request for retrial from the time of the request for retrial under Article 27(2) of the Constitution and Articles 2 and 3 of the Military Court Act, deeming the case to fall under either a case where a military court no longer has jurisdiction after the request for retrial, or a case where it is found that a military court does not have jurisdiction while proceeding with litigation procedures after the request for retrial after the request for retrial, clearly goes beyond the ordinary meaning of the language and text. Furthermore, such expanded interpretation cannot be permitted in that it is ultimately a direct violation of Article

Generally, “act of litigation” includes court trials, but since the right of ordinary citizens to choose not to be tried by the military court is guaranteed as constitutional rights, the “judicial judgment” of the military court does not, in principle, be included in “act of litigation” as referred to in Article 2(3) of the Military Court Act. Ultimately, the “decision on retrial” including the decision on commencing a new trial and the decision on commencing a new trial should be understood as a “judicial decision” which has a fundamental effect on the title of the request for a new trial. Thus, the decision on commencing

In addition, insofar as the decision to commence a new trial by the military court without jurisdiction is not included in “act of litigation” that can not be subject to Article 2(3) of the Military Court Act or can be effective, even if the decision to commence a new trial is favorable to the defendant or the conclusion is reasonable, the decision to commence a new trial should not be maintained as it is, and the general court should proceed with the procedure again from the

[2] Even if there was a special amnesty which would lose the effect of a sentence after the conviction became final and conclusive, the legal effect of the sentence would only be extinguished in the future, and the fact-finding conducted in the final and conclusive conviction and the judgment of conviction should not be lost. Thus, the judgment of conviction still exists after it loses the validity of the sentence. Meanwhile, the defendant, who has grounds for a retrial under each subparagraph of Article 420 of the Criminal Procedure Act, has a special amnesty, needs to remove the remaining disadvantage, that is, the sentence of conviction, and the career of the king that a sentence was rendered.

In addition, Article 420 of the Criminal Procedure Act provides that a request for a retrial may be made for the benefit of a person who has been sentenced to a final and conclusive judgment of conviction. The purpose of the retrial system is to correct any error in fact-finding in a final and conclusive judgment of conviction and remedy the infringement of the human rights of a criminal defendant who has not committed an offense. If a conviction whose effect of sentence has lost due to a special amnesty cannot be subject to a request for a retrial, it would be against the purport of the retrial system, because it would be against deprivation of the right to request a retrial, restoration of honor, and suspension of opportunities to receive criminal compensation, etc.

Therefore, the final judgment of conviction that lost the effect of a sentence due to special amnesty falls under the "final judgment of a crime of oil" under Article 420 of the Criminal Procedure Act and can be subject to a request for retrial.

[3] "Amnesty" under Article 326 subparagraph 2 of the Criminal Procedure Act, which is a ground for acquittal, refers to a general amnesty, and the special amnesty against a person who was sentenced to a final judgment does not correspond to this. Thus, even if there was a special amnesty, which would lose the validity of a sentence after the final judgment for retrial became final and conclusive, the court in which the decision for retrial became final and conclusive, and the court in which the decision for retrial is made, should re-examines the case according to its instance, and make a judgment of acquittal, on the ground that there was a special amnesty, shall not be acquitted on the ground that there was a special amnesty.

[1] Articles 12(1), 27(1) and (2), and 37(2) of the Constitution of the Republic of Korea; Articles 2, 3, and 472 of the Military Court Act / [2] Article 420 of the Criminal Procedure Act; Articles 5 and 9 of the Amnesty / [3] Article 326 subparag. 2 of the Criminal Procedure Act; Articles 5, 8, and 9 of the Amnesty

[2] Supreme Court Decision 96Do2153 decided Jul. 22, 1997 (Gong1997Ha, 2590), Supreme Court Order 2010Mo24 decided Feb. 26, 2010 (amended) / [3] Supreme Court Decision 99Do2983 decided Feb. 11, 200 (Gong200Sang, 738)

Defendant

Prosecutor

Law Firm Barun Law LLC, Attorneys Park Ha-ju et al.

Seoul High Court Decision 2010Reno42 decided January 20, 2011

The appeal is dismissed.

The grounds of appeal are examined.

1. Grounds of appeal by the court below and prosecutor

A. On April 28, 1973, the Korea Army Headquarters General Law Meeting recognized the Defendant as guilty of all the charges in the case of occupational embezzlement, etc., No. 94 of the 73th Order against the Defendant, and sentenced 15 years of imprisonment and fine of KRW 20 million (hereinafter “the first instance judgment”).

B. On July 30, 1973, the Defendant and the military prosecutor filed an appeal against the first instance judgment against the High Military Court Decision 73 years old High Military Court Decision 706, and the High Military Court Decision 73 years old Military Court Decision 306, the Defendant and the military prosecutor reversed the first instance judgment of July 30, 1973, and convicted the Defendant of some occupational embezzlement, violation of the emergency order concerning the stabilization and growth of economy, and violation of the Guns and Powders Control Act, and sentenced the Defendant to 15 years of imprisonment and fine 10 million won, and acquitted the remainder

C. On August 8, 1973, the convening authority confirmed that the defendant was sentenced to 15 years of imprisonment with prison labor for the above 15 years against the defendant, and the above appellate judgment (hereinafter “the judgment on review”) was finalized at that time due to the failure of both the defendant and the military prosecutor to file an appeal.

D. On February 29, 1980, the Defendant was released by the suspension of the execution of the above punishment and was subject to a special amnesty on February 29, 1980.

E. On April 5, 2010, the Defendant filed a petition for a new trial with the High Court for Armed Forces regarding a judgment subject to new trial. The High Court for Armed Forces had already been removed from the military by the Defendant, and did not have jurisdiction over a new trial proceeding. However, on the premise that the procedure for commencing new trial, which only determines the existence or absence of a ground for new trial, is under jurisdiction. On the ground that investigators have proved that they committed a crime on official duties, such as illegal arrest and adviser, and there was a ground for new trial under Article 469 subparag. 7 of the Military Court Act, the decision to commence new trial was rendered on the conviction part among the judgment subject to new trial

F. The lower court reversed the part of the facts charged in the first instance judgment and acquitted the Defendant on the ground that there is no evidence to reinforce it in addition to the confession, on the ground that there is no other evidence to reinforce it. The lower court reversed the part of the facts charged in the first instance judgment and acquitted the Defendant on the charge of violation of the Emergency Order on Occupational Embezzlement and Economic Stabilization and Growth among the facts charged for conviction (hereinafter “instant facts charged”).

G. The prosecutor’s grounds of appeal are as follows.

The judgment subject to a retrial cannot be subject to a retrial because the sentence becomes null and void due to special amnesty, and thus, even if the decision to commence a retrial became final and conclusive, it cannot be conducted without being subject to a trial due to a retrial procedure. However, the lower court deemed that the judgment was subject to a retrial, and that the lower court rendered a judgment of not guilty, thereby misapprehending the legal doctrine on special amnesty and the subject of a retrial. Even if the judgment subject to a retrial becomes subject to a retrial, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine

2. Determination ex officio as to the jurisdiction of the retrial of this case

A. Article 27(1) of the Constitution provides that “All citizens shall have the right to be tried by a judge in accordance with the law as prescribed by the Constitution and the Act.” Article 27(1) provides that “All citizens shall have the right to be tried by a judge appointed in accordance with the qualifications and procedures prescribed by the Constitution and the Act.” In addition, Article 27(2) of the Constitution provides that “All citizens, other than military personnel or civilian employees, shall not be tried by a military court except where the Act is prescribed in the territory of the Republic of Korea, and where emergency martial law is declared, military courts shall not be tried, except as otherwise provided for in Article 27(2) of the Constitution.” Thus, citizens, other than military personnel or civilian employees, (hereinafter “general citizens”) are entitled not to be tried by military courts.

Therefore, military courts do not have jurisdiction over general citizens unless otherwise provided for in Article 27(2) of the Constitution. Although the main text of Article 472 of the Military Court Act provides that a request for retrial shall have jurisdiction over the Supreme Court or the military court which rendered the original judgment, the jurisdiction is premised on jurisdiction. Thus, in cases where the military court is removed from the military after the military court's judgment became final and conclusive, and there is no jurisdiction over the military court, the jurisdiction over the retrial case shall be not the military court which made the original judgment but the general court of the same instance (see Supreme Court en banc Decision 84Do2972, Sept.

In addition, the procedure for commencing a new trial as well as the procedure for examining and determining the existence of grounds for a new trial cannot be deliberated and tried without jurisdiction. Thus, the military court that received a request for a new trial should first examine whether jurisdiction exists and immediately transfer the case to the general court of the same instance pursuant to Article 2(3) of the Military Court Act, and immediately transfer the case to the general court of the same instance pursuant to Article 2(3) of the same Act.

On the contrary, if a case is transferred to a general court after a ruling of commencing a retrial was rendered even though the military court does not have jurisdiction, it shall be deemed an unlawful exercise of jurisdiction: Provided, That the latter part of Article 2(3) of the Military Court Act provides that “In this case, litigation conducted before the transfer shall have no effect on the validity thereof even after the transfer.” Thus, the general court to which the case was transferred does not need to proceed again from the beginning, and may proceed with the subsequent procedure by deeming that the ruling of commencing a retrial by the military

B. Although the Minister of Health and Welfare and the High Court for Armed Forces held that the defendant had no jurisdiction over the procedure for retrial as seen earlier, it is unlawful to consider that there was a jurisdiction over the procedure for commencement of retrial, which is the prior procedure, and that the decision of commencement of retrial was made. However, the decision of the court below to which the case was transferred to a trial procedure based on the above decision of commencement of retrial cannot be deemed unlawful.

3. Judgment on the grounds of appeal

A. We examine whether the instant judgment subject to a retrial can be subject to a retrial.

(1) Even if there was a special amnesty that would lose the effect of a sentence after the conviction became final and conclusive, the legal effect of the sentence would only be extinguished in the future, and the fact-finding conducted in the final and conclusive conviction and the judgment of conviction should not be lost. Thus, the above conviction still exists after it lost the validity of the sentence. Meanwhile, the defendant, who has grounds for a retrial under each subparagraph of Article 420 of the Criminal Procedure Act, has a special amnesty, needs to remove the remaining disadvantage, that is, the sentence of conviction, and the career of the king that a sentence was rendered.

In addition, Article 420 of the Criminal Procedure Act provides that a request for a retrial may be made for the benefit of a person who has been pronounced guilty in a final and conclusive judgment. The purpose of the retrial system is to correct any error in fact-finding in a final and conclusive judgment of conviction and remedy the infringement of human rights of a criminal defendant who has not committed an offense. If a conviction whose effect of sentence has lost due to a special amnesty cannot be subject to a request for a retrial, this would be against the purport of the retrial system, because it would be against deprivation of the right to request a retrial, restoration of honor, and suspension of the opportunity to receive criminal compensation on the sole ground that

Therefore, it is reasonable to interpret that a final judgment of conviction that lost the effect of a sentence due to special amnesty constitutes "final judgment of a crime of oil" under Article 420 of the Criminal Procedure Act and can be subject to a request for retrial.

In contrast, Supreme Court Decision 96Do2153 Decided July 22, 1997 and Supreme Court Decision 2010Mo24 Decided February 26, 2010, etc. that held that a request for retrial subject to such a judgment is unlawful if there was a special amnesty that would lose the effect of a sentence after the final judgment of conviction, the request for retrial, which had already not been subject to a request for retrial, shall be modified to the extent inconsistent with this judgment.

Meanwhile, “Amnesty” under Article 326 subparag. 2 of the Criminal Procedure Act, which is the ground for a judgment of acquittal, refers only to general amnesty (see Supreme Court Decision 99Do2983, Feb. 11, 2000). Since special amnesty against a final and conclusive person upon having been sentenced does not fall under this, even if there was a special amnesty that would lose the effect of a sentence after the decision of retrial became final and conclusive, the court in which the decision of retrial has become final and conclusive and conclusive should make a judgment of guilt, innocence, etc. as to the substance by re-adjudicationing the decision of retrial according to the instance, and shall not render a judgment of acquittal on the ground that there was the above special amnesty.

(2) As to the instant case, the lower court’s determination on the instant judgment subject to retrial, which lost the effect of sentence due to a special amnesty, also becomes subject to a retrial, is justifiable in light of the aforementioned legal doctrine. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on special amnesty and the subject of a request for retrial.

B. We examine whether there is a misapprehension of the legal principles on the rules of reinforcement of confession beyond the bounds of the principle of free evaluation of evidence.

Examining the reasoning of the judgment below in light of the records, it is justifiable for the court below to hold the defendant not guilty on the grounds as stated in its reasoning, such as that some of the evidence submitted by the prosecutor is inadmissible as illegally collected evidence, and the facts charged in this case are insufficient to be admitted only with the remaining evidence, or there is no supporting evidence in addition to the confession. Contrary to the allegations in the grounds of appeal, the court below did not err by exceeding

4. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion by Justice Kim Chang-suk as to the purport that a new trial can proceed on the premise of a military court’s decision to commence a new trial without jurisdiction.

5. Dissenting Opinion by Justice Kim Chang-suk

A. Article 2(3) of the Military Court Act provides that “Where a military court ceases to have jurisdiction over a case against which a public prosecution was instituted or it has become clear that a military court does not have jurisdiction over such case, the military court shall, by ruling, transfer such case to a court of the same tier having jurisdiction over such case, but a case on appeal to be tried by a single judge, among the cases pending in the High Court for Armed Forces, shall be transferred to the appellate division of a district court.” In such cases, the validity

The majority opinion held that, although the High Court for Armed Forces did not have jurisdiction over the retrial of this case, the decision to commence retrial was unlawful, inasmuch as the High Court for Armed Forces rendered a decision to commence retrial and transferred the case to the lower court having jurisdiction over the case after the High Court for Armed Forces rendered a decision to commence retrial, the decision to commence retrial pursuant to the latter part of Article 2 (3) of the Military Court Act remains effective, so

B. However, the instant case cannot be deemed to be a case where the latter part of Article 2(3) of the Military Court Act applies. This is because, in order to apply the latter part of Article 2(3) of the Military Court Act with respect to the instant case, the instant case cannot be deemed to fall under the proviso of Article 2(3) of the Military Court Act.

First of all, Article 2(3) of the Military Court Act provides on cases where ordinary public prosecution is instituted, and even in cases where a request for a retrial is filed, a strong doubt is raised as to whether the request for a retrial can be inferredly applied, as in the case of the institution of public prosecution. This is also true for the following reasons that Article 2(3) of the Military Court Act cannot be applied.

“Cases in which a military court does not have jurisdiction over a case in which public prosecution was instituted” refers to cases in which jurisdiction has become nonexistent since the military court had jurisdiction over the case at the time of institution of public prosecution. However, this case is obvious that the defendant had no jurisdiction over the military court since he/she requested reexamination to the High Military Court, and it does not constitute “cases in which the military court does not have jurisdiction” after the request for reexamination.

In addition, “where it becomes clear that a military court does not have jurisdiction over a case in which public prosecution was instituted,” means cases where the military court had jurisdiction over the case at the time of institution of public prosecution, but it is found that there was no jurisdiction while proceeding with legal procedures thereafter. However, the High Court for Armed Forces, even though the military court did not have jurisdiction, rendered a decision to commence a retrial based on an arbitrary judgment that the procedure to determine only the existence of grounds for retrial can proceed, and thus, it cannot be deemed that the procedure was “where it is proved that the military court did not

C. As long as Article 2(3) of the Military Court Act cannot be applied to the instant case under the language and text, only the point of whether Article 2(3) of the Military Court Act can be applied through extended interpretation remains.

However, extended interpretation beyond the ordinary meaning of the language and text cannot be permitted. However, even though it is evident that the military court had no jurisdiction over the instant request for retrial at the time of the request for retrial under Article 27(2) of the Constitution and Article 2 and Article 3 of the Military Court Act, it is evident that the instant case, which led to a ruling of commencing a retrial, falls under a case where the military court no jurisdiction after the request for retrial was made, or where it is found only when it was done while litigation procedures were conducted after the request for retrial, and it is obviously beyond

D. Furthermore, such extended interpretation may not be permitted in that it ultimately violates Article 27(2) of the Constitution.

Article 27(2) of the Constitution of the Republic of Korea provides that “A citizen who is not a soldier or military employee shall not be tried by a military court except in cases where the Act is prescribed in the territory of the Republic of Korea among crimes concerning military secrets, sentrys, sentrys, food supply, prisoners of war, and military supplies, and where emergency martial law is declared, no trial shall be conducted by the military court.” As such, the Constitution stipulates the right not to be tried by a military court as the right under the Constitution. The Constitution explicitly prescribes the exceptional jurisdiction of a military court that the distribution of jurisdiction between a general court and a military court does not constitute a matter of conformity.

As long as Article 27(2) of the Constitution guarantees the right of a citizen to not be tried by the military court as a fundamental right, Article 2(3) of the Military Court Act, which recognizes the exception on the premise of inevitable circumstances, should be strictly interpreted, and the fundamental contents of the right should not be infringed by extensively interpreting or by analogy interpreting or interpreting it (see Article 37(2) of the Constitution).

Nevertheless, the majority opinion evaluated the meaning of the right not to be tried by the military court guaranteed by Article 27(2) of the remaining Constitution, which focuses on the viewpoint of the litigation economy, and interpreted extensively that Article 2(3) of the Military Court Act applies to the instant case, thereby adversely infringing on the essential contents of the right.

E. In addition, even if the latter part of Article 2(3) of the Military Court Act can be applied to the instant case, the decision to commence a retrial cannot be deemed to constitute “act of litigation” in the latter part.

Generally, “act of litigation” includes a court judgment, but as seen in the above, since the right of ordinary citizens not to be tried by the military court is guaranteed as constitutional right, the military court’s “judgment” should be interpreted as not being included in the above “act of litigation” in principle.

However, it can only be deemed that the “act of litigation” included the first instance trial of the military court, which is the former instance, inasmuch as it is inevitable cases where a military court ceases to have jurisdiction due to the reason such as discharge of a defendant, etc., and a case is transferred to an appellate court of a general court, such as the transfer of a case to the appellate court of a general court.

However, it is clear that the High Court for Armed Forces's decision to commence a new trial of this case does not constitute a judgment of the preceding instance, which can be recognized as an effective litigation, in lieu of the High Court for Armed Forces for Armed Forces for general law.

In addition, a decision on whether to commence a new trial is made as to whether there are grounds for a new trial under each subparagraph of Article 420 of the Criminal Procedure Act (in the case of a judgment made at a military court, Article 469 of the Military Court Act), and in itself, it is a final and conclusive judgment, and its impact on the applicant for a new trial is absolute. It cannot be evaluated as a “judicial act” which is less important than a new trial rendered after the decision on commencing a new trial, or a “act of litigation” which is maintained after transfer under Article 2(3) of the Military Court Act. In addition, the determination on the existence of grounds for a new trial does not have the nature that can be made easily through a formal trial only (the same shall apply where there is a dispute over the existence of proof substituting the “final judgment under Article 469 subparag. 7 of the Military Court Act” as in this case), and where a decision on commencing a new trial

Ultimately, “decision on retrial”, including a new judgment as well as a decision on commencing a new trial, should be understood as a “judgment” which has a fundamental impact on the order of the request for a new trial. Nevertheless, if the decision on commencing a new trial is interpreted not to be included in the “judgment” of the military court, as shown in the Majority Opinion, if the “judgment” of the decision on commencing a new trial is considered to be included in the “act of litigation” after the latter part of Article 2(3) of the Military Court Act, this does not change from the beginning to the recognition that the “judgment” of the decision on commencing a new trial can be rendered even without jurisdiction of the military court. As a result, the “inherent content” of the right not to be tried by the military court as stipulated in

F. In addition, insofar as the order to commence a new trial by a military court without jurisdiction is not included in “act of litigation” that cannot be subject to Article 2(3) of the Military Court Act or that can be effective, the decision to commence a new trial shall not be held in favor of the defendant, even if the decision to commence a new trial is favorable to the defendant or its conclusion is reasonable, and shall proceed with the procedure from the beginning in the general court. The issue of whether jurisdiction exists is because it is not a matter of the nature that can be determined and determined by the defendant’

Therefore, the judgment of the High Court for Armed Forces, which did not have jurisdiction over the instant case, shall be null and void, and the judgment of the court below which judged as a retrial proceeding under the premise that the judgment of the High Court for Armed Forces for Armed Forces for Armed Forces is valid, shall be deemed to constitute a case where there

Therefore, unlike the conclusion of the Majority Opinion, the lower judgment should be reversed and remanded to the lower court, and the lower court should proceed again with the procedure for determining whether to commence a retrial.

For the same reasons, I express my opinion that we cannot agree with the majority opinion.

Justices Yang Sung-tae (Presiding Justice)