[1] Standard for determining the identity of facts charged or facts charged

[2] The meaning of the penalty system under the Punishment of Minor Offenses Act and the scope of the effect corresponding to the final judgment

[3] The case holding that the judgment below which acquitted the defendant on the ground that, in a case where the defendant received a disposition of notice on a penalty due to an act of "inhuman disturbance" under the Punishment of Minor Offenses Act and received such disposition, and was indicted for causing danger to life by causing bodily harm to the victim at a close time and place, the act of serious injury, which is an offense, cannot be deemed as identical to the basic facts, the act of neighboring disturbance and serious injury, which is the facts charged, cannot be deemed as identical to the facts charged, has the effect

[1] Article 298(1) of the Criminal Procedure Act / [2] Article 13(1) of the Constitution, Articles 5, 6, and 7 of the Punishment of Minor Offenses Act (wholly amended by Act No. 11401, Mar. 21, 2012); Articles 298(1) and 326 subparag. 1 of the Criminal Procedure Act / [3] Articles 1 subparag. 26 and 7(3) of the Punishment of Minor Offenses Act (wholly amended by Act No. 11401, Mar. 21, 2012); Article 258(1) of the Criminal Act; Articles 298(1) and 326 subparag. 1 of the Criminal Procedure Act

[1] [2] Supreme Court Decision 2009Do12249 Decided April 28, 201 (Gong2011Sang, 1089) / [1] Supreme Court en banc Decision 93Do2080 Decided March 22, 1994 (Gong1994Sang, 1368) Supreme Court Decision 2009Do4785 Decided October 14, 2010 (Gong2010Ha, 2113) / [2] Supreme Court Decision 2001Do849 Decided November 22, 2002 (Gong203Sang, 267) (Gong2006Do4322 Decided April 12, 207)

Defendant

Prosecutor

Daegu High Court Decision 2011No69 decided May 19, 2011

The judgment below is reversed, and the case is remanded to the Daegu High Court.

The grounds of appeal are examined.

1. The facts charged in this case and the summary of the relevant offenses

The summary of the facts charged of this case is that at around 20:20 on August 22, 2009, the defendant suffered danger to his life by suffering from injuries, such as double dubs, etc. requiring medical treatment for 16 weeks due to the shock of the victim's left side by drinking at one time during the dispute over the issue of parking with the victim, who is a security guard, at the front of the "(trade name omitted)" located in the Northern-dong, Mapo-dong (hereinafter referred to as "Mapo-dong").

Meanwhile, according to the records, the defendant was notified by the chief of the police station having jurisdiction over the same day to pay a penalty of KRW 30,000 on August 22, 2009 and paid it on the 26th day of the same month on the grounds that he committed an act of disturbance in neighboring areas under Article 1 subparag. 26 of the Punishment of Minor Offenses Act, around 20:35, 2009.

2. The judgment of the court below

The court below affirmed the judgment of the court of first instance that acquitted the Defendant pursuant to Article 326 subparagraph 1 of the Criminal Procedure Act on the ground that the facts charged in this case and the offense for which the Defendant paid the penalty are identical to the place of the crime, and the offense committed by the Defendant and the victim are almost the same time, and it is clear that it was a series of acts committed at the expense of the Defendant and the victim, and that it was a series of acts committed by the police officers, and that the case was terminated by taking a disposition of notification to both the Defendant and the victim, not taking account of the previous appearance of the case, and considering the fact that the above offense was committed by the Defendant when he was the victim, the basic facts of both facts are identical, and accordingly, the res judicata effect of the final judgment following the payment of the penalty extends to the charges in this case.

3. The judgment of this Court

However, we cannot agree with the above judgment of the court below.

The identity of facts charged or facts constituting an offense ought to be determined based on the Defendant’s act and the relevant social factual basis in mind with the legal function of identity of facts (see, e.g., Supreme Court en banc Decision 93Do2080, Mar. 22, 1994; Supreme Court Decision 2009Do4785, Oct. 14, 2010).

Meanwhile, the penalty system under the Punishment of Minor Offenses Act differs from the trial procedure of the court in terms of institutional purport and legal nature in that it provides a special case for punishment for a person who pays a certain amount of penalty by providing an opportunity to pay a penalty pursuant to a notification disposition by the chief of a police station, etc. prior to the criminal procedure, prior to the criminal procedure. The scope recognized as effective following the payment of a penalty is limited to the relevant offense itself and the offense recognized as identical to such offense, which are stated in the reason for notification of the penalty, and the criminal act committed in the same time and place as the offense. Therefore, even if the act was committed during the same period and place as the offense, the effect of res judicata corresponding to the final judgment does not extend to the effect of res judicata (see, e.g., Supreme Court Decisions 201Do849, Nov. 22, 2002; 2009Do1249, Apr. 28, 2011).

According to the facts and records seen earlier, there is some overlap in that the place of the crime is identical and temporary close to the place of the crime, and both the Defendant and the victim appear to have been cut off at the expense of the victim.

However, an offense under Article 1 subparag. 26 of the Punishment of Minor Offenses Act, which applies to the Defendant, is “the act of causing excessive noise, such as musical instruments, radio, television, electric shock, bell, loudspeaker, electrical motor, etc., or by singing or singing.” However, since a serious injury, which is the facts charged in this case, causes danger to the Defendant’s life by injuring the victim’s body, the contents, means, and attitudes of the offense are very different. In addition, a serious injury, compared to the act of protecting the peace and order of society as a protected legal interest, is the physical freedom and completeness of the specific person, and the nature of the offense is also significantly different. Furthermore, in light of the contents, means, and attitudes of the offense, it cannot be deemed that the act is included or anticipated in the process of the act, or that the act of serious injury, which is the facts charged in this case, can not be seen as being included in the act of serious injury, which is the facts charged in this case, in light of the legal principles as seen above, separate from the facts charged in this case.

Nevertheless, the judgment of the court below which acquitted the defendant pursuant to Article 326 subparagraph 1 of the Criminal Procedure Act on the ground that the above offense and the facts charged in this case are identical to the facts charged in this case, and thus, the validity of the penalty payment for the above offense extends to the facts charged in this case. The judgment below erred by misapprehending the legal principles on the identity of the offense and the validity of res judicata following the payment of the penalty, which affected the conclusion of the judgment.

4. 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 In-bok (Presiding Justice)