Only the defendant appealed against the judgment of the first instance and the judgment dismissing an appeal was pronounced. On the judgment of the second instance, the time when the judgment of the second instance becomes final and conclusive where the defendant waives the appeal and the prosecutor fails to waive the appeal

In the case of a defendant, an appeal is not made because it did not have the benefit of appeal. However, in the case of a prosecutor, unless the judgment becomes final and conclusive, it is possible to file an appeal to seek the proper application of the law, i.e., the benefit of the defendant or the benefit of the law, as well as the benefit of the defendant. Thus, even if a prosecutor filed an appeal against the judgment of the first instance without filing an appeal but only the defendant was dismissed, the right to appeal against the judgment of the second instance held by the prosecutor cannot be deemed to have been extinguished. Furthermore, the formal final and conclusive time of the judgment is determined objectively and uniformly by formal reasons, such as whether there is the right to appeal against the judgment, the period of appeal, waiver or withdrawal of appeal, etc., and the waiver of the defendant's appeal cannot be said to have become final and conclusive only by the waiver of the judgment of the second instance.

Article 338(1) of the Criminal Procedure Act; Article 349 of the Criminal Procedure Act; Article 357 of the Criminal Procedure Act; Article 368 of the Criminal Procedure Act; Article 371 of the Criminal Procedure Act; Article 399 of the Criminal Procedure Act

Applicant

The Prosecutor of the Daegu High Public Prosecutor's Office shall revoke his direction on July 28, 1994 that the Daegu High Public Prosecutor's Office had been appointed by the 94No84, Daegu High Public Prosecutor's Office, concerning an applicant, and revoked his direction on the invalidation of suspended sentence of imprisonment for a case of 92No64.

According to the records of the instant application case, the Daegu District Court 91 High Court 964, the Daegu High Court 92No64, the Daegu High Court 92No64 (the first and second instances of the violation of the Act on Special Measures for the Control of Public Health Crimes; hereinafter referred to as the “instant case”) and the Daegu District Court 93 High Court 97Da5727, 94No436 (the first and second instances of the violation of the Illegal Check Control Act), the following facts can be acknowledged.

On December 24, 1991, the Claimant was sentenced to imprisonment with prison labor for one year and six months and a fine of 1,000,000 won in violation of the Act on Special Measures for the Control of Public Health Crimes and sentenced to a suspended sentence of three years. On June 17, 1992, the Claimant appealed from this Court and sentenced to a suspended sentence of two years for imprisonment with prison labor for one year and a fine of 1,00,000 won from this Court, and the period of appeal was determined on June 25 of the same year.

After that, on February 18, 1994, the applicant filed an appeal against the violation of the Illegal Check Control Act by the Daegu District Court sentenced ten months to imprisonment (the prosecutor did not file an appeal). On June 24 of the same year, the court dismissed the appeal by the applicant who is the defendant. The applicant renounced the appeal on the same day (the prosecutor did not waive the appeal).

Based on the premise that the appellate court's judgment on the violation of the above Illegal Check Control Act became final and conclusive on June 24, 1994, the prosecutor of the Daegu High Public Prosecutor's Office has lost the validity of the suspended sentence under Article 63 of the Criminal Act due to the final and conclusive judgment after being sentenced to imprisonment without prison labor or heavier punishment within the period from June 25, 1992 to June 24, 1994, and ordered the invalidation of the suspended sentence on July 28, 1994.

Therefore, as to whether the above disposition by a prosecutor is legitimate, an appeal may be filed against the judgment of the first instance, and against the judgment of the second instance (Articles 338(1), 357, and 371 of the Criminal Procedure Act), the period for filing an appeal shall be seven days from the date the judgment is pronounced (Articles 343(2) and 374 of the same Act), and the right to appeal may waive an appeal (Article 349 of the same Act). Therefore, the judgment of the second instance shall become final and conclusive regardless of the expiration of the period for filing an appeal without filing an appeal by the prosecutor who is the right to appeal and the defendant, and even if the defendant violated the interest of the appeal, if the defendant did not have any benefit of appeal (see Articles 368, 399 of the same Act). In the case of the prosecutor, it is possible for the prosecutor to waive the judgment of the second instance as to the defendant's interest or interest, that is, whether the defendant's right to file an appeal has no objective reason to file an appeal against the judgment.

Therefore, the judgment of the court of the second instance, which only the applicant who was the defendant, renounced the appeal, was finalized on July 2, 1994 after seven days from June 24, 1994, which is the date of the sentence, and it is clear that the date is from June 25, 1992, which is the period of probation of the case, to June 24, 1994, which is the period of probation of the case. Thus, the direction of the public prosecutor of the High Public Prosecutor's Office of Daegu High Public Prosecutor's Office, which is based on the premise that the above judgment of the court of the second instance becomes final

Judges Jeong-young (Presiding Judge) Kim Chang-dong and Lee Chang-dong