[1] The purport of Articles 7(3) and 8(3) of the Punishment of Minor Offenses Act that “a person who paid a penalty shall not be punished again for an offense.”

[2] In a case where a public prosecution is instituted against a case identical to a case where a final and conclusive judgment is rendered, the measures to be taken by the court (=a judgment in a retrial), and the standard for determining identity

[3] The case holding that the judgment of the court below which convicted the defendant of the above charges was erroneous in the incomplete hearing or in the misapprehension of legal principles as to the existence of a final judgment, which is a passive litigation condition, due to the ex officio investigation, even though there is room for the same case as the "marc disturbance, etc." which is an offense for which penalty was already paid under the Punishment of Minor Offenses Act

[1] Articles 7(3) and 8(3) of the Punishment of Minor Offenses Act / [2] Article 13(1) of the Constitution of the Republic of Korea; Articles 298(1) and 326 subparag. 1 of the Criminal Procedure Act / [3] Articles 136(1) and 314(1) of the Criminal Act; Articles 1 subparag. 25, 7(3), and 8(3) of the Punishment of Minor Offenses Act

[1] [2] Supreme Court Decision 2002Do2642 Decided July 11, 2003 (Gong2003Ha, 1747) / [1] Supreme Court Decision 2001Do849 Decided November 22, 2002 (Gong2003Sang, 267) / [2] Supreme Court Decision 2004Do4758 Decided November 12, 2004, Supreme Court Decision 2006Do4885 Decided November 13, 2008 (Gong2008Ha, 1707) (Gong2009Do14263 Decided February 25, 2010)

Defendant

Defendant

Attorney Kim Jong-soo

Seoul Central District Court Decision 2010No2236 Decided August 27, 2010

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

We examine the grounds of appeal.

1. The facts charged in this case and the judgment of the court of first instance and the court below

A. The summary of the facts charged of this case is as follows: (a) around 21:00 on October 10, 209, at the Seongbuk-gu Seoul (hereinafter the detailed address omitted) victim 1’s head of Seongbuk-gu, Seoul (hereinafter the victim’s head of the office omitted), the defendant walked the time room to the next customers on the ground that the next customers are seated and seated while drinking and drinking. The defendant saw that the next customers are seated, so as to be called as “chotyp, dyle,” and flabing the head of the above customer’s head of the office. The victim tried to stop the defendant, but the defendant continued to do so, following the above customer’s face-to-face, the defendant 1 obstructed the Defendant’s performance of his duties by assaulting Nonindicted Party 4’s head of the police station, and 21:30 on the day on which he received the victim’s desire to walk, thereby obstructing the Defendant’s performance of his duties by force, and thus, obstructed the police officer’s act of this case.

B. The court of the first instance found the Defendant guilty of the facts charged in this case by integrating the evidence presented in its reasoning, and the Defendant, who appealed against this, failed to make mistake of facts and unreasonable sentencing through the grounds of appeal. As to this, the court below reversed ex officio the judgment of the first instance on the grounds of misapprehending the legal principles as to the number of crimes and rejected the Defendant’s assertion of mistake

2. Judgment on the grounds of appeal

A. According to Articles 7(3) and 8(3) of the Punishment of Minor Offenses Act, a person who pays a penalty after receiving a notification of the payment of penalty and receiving a notification of the payment of penalty shall not be punished again for the same offense. This recognizes the validity corresponding to a final judgment for the payment of penalty pursuant to a notification disposition (Supreme Court Decision 2002Do2642 Decided July 11, 2003) and Article 326 Subparag. 1 of the Criminal Procedure Act provide that "when a final judgment has become final and conclusive" shall be acquitted. Thus, in a case where a public prosecution is instituted against a case identical to a case in which a final and conclusive judgment has become final and conclusive, a acquittal shall be sentenced by judgment (see, e.g., Supreme Court Decision 2006Do485, Nov. 13, 2008). Here, whether the facts charged or offenses are identical shall be based on the defendant's social act and fact-finding with the legal functions identical to the facts and shall also be determined in consideration of the normative elements thereof (see, etc.

B. According to the records, the Defendant’s act of violating the penal provision on February 5, 2010, which was released on the penalty payment notice, was that “the Defendant committed an act of disturbance, etc. within the △△ District around October 13, 2009,” and ② the Defendant was notified of the payment of the penalty amounting to KRW 50,00 and did not pay it within the prescribed period. However, the Defendant was present at the summary judgment on January 7, 2010 (the scheduled date of the summary judgment: 75:0 won increased by 50%), and the Defendant was notified of the payment notice on February 5, 2010 to Nonindicted Party 1’s office at the △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△○’s act of interference with Nonindicted Party 2’s business operation of the Defendant.

C. According to these facts, from October 11, 2009 to October 13, 2009, the Defendant appears to have been detained in the cell of △△ Police Station from around 08:35 to before the actual examination of the warrant of detention on October 13, 2009, and was not in a situation where the Defendant again could engage in an act of disturbance of drinking in the △△ District on October 13, 2009, and on October 10, 2009, Nonindicted Party 2/Doing police officers belonging to the ▽▽△△ District made a statement to the effect that the Defendant interfered with the performance of official duties by issuing a horse strawer and assaulting the Defendant, etc. on October 13, 2009, which is the date of the violation of the notice of penalty payment, the Defendant appears to have committed the same offense as the Defendant’s assault, which is the instant offense, and thus, there is considerable room to view the Defendant as the Defendant’s act of interference with the performance of duties.

Therefore, the court below should have further deliberated on whether the violation date and October 13, 2009 on the notice of penalty payment were erroneous, whether the defendant actually committed an act of disturbing re-breathing in the ▽▽△ district on October 13, 2009, and whether the violation of this case was not a interference with business in the ○○○○○○ Home, and should have determined whether the violation of this case was a final and conclusive judgment on the facts charged of this case.

Nevertheless, the judgment of the court below which convicted the defendant without properly examining whether there was a final judgment on this case, is erroneous in the incomplete hearing or in the misapprehension of legal principles as to the existence of a final judgment which is a passive condition of lawsuit ex officio. The defendant's assertion pointing this out has merit.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)