Defendant

Defendant

Prosecutor

Seoul Eastern District Court Decision 2010No290 Decided August 19, 2010

This Court shall revoke the decision to commence a retrial made on June 16, 2015 with respect to this case.

The request for retrial by a requester is dismissed.

1. Determination of the original judgment

According to the records, on February 10, 2010, the applicant for a retrial was sentenced to two years of imprisonment with prison labor for the case of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (thief) by Seoul Eastern District Court Decision 2009Da2494, and the applicant for a retrial and the prosecutor filed an appeal against the appeal on February 10, 2010, but the judgment of the court below was reversed on February 10, 2010 and sentenced to three years of imprisonment with prison labor for the applicant for a retrial by applying Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 329 of the Criminal Act, etc.

2. Claims by a person who requested a retrial;

The Constitutional Court rendered a decision that Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 10210, Mar. 31, 2010) is in violation of the Constitution. Thus, there are grounds for retrial under Article 47(4) of the Constitutional Court Act in the judgment subject to a retrial.

3. Determination

The Constitutional Court's decision of unconstitutionality under Article 47 of the Constitutional Court Act has its effect only on the law or legal provisions that are subject to the decision of constitutionality, and it does not extend to other law or legal provisions unless there are special circumstances (see Supreme Court Decision 2009Do9576, Apr. 14, 201).

The Constitutional Court decided on February 26, 2015 that "the part concerning Article 329 of the Criminal Act among Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 10210, Mar. 31, 2010) and the part concerning the attempted crime under Article 329 of the Criminal Act among Article 329 of the same Act shall be unconstitutional." However, the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 7226, Oct. 16, 2004; Act No. 10210, Mar. 31, 2010) concerning Article 329 of the Criminal Act shall not become unconstitutional.

Therefore, the argument that there is a ground for a retrial that is subject to the application of Article 5-4(1) and Article 329 of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 7226, Oct. 16, 2004; Act No. 10210, Mar. 31, 2010) is without merit.

4. Conclusion

Therefore, since the prosecutor's immediate appeal pointing this out is well-grounded, under Article 408 (1) of the Criminal Procedure Act, the court revokes the decision of commencing a new trial as to this case on June 16, 2015, and dismiss the request for a new trial as ordered by the applicant.

Judge last two (Presiding Judge) Jinjin Kim Jong-hun