In a case where the first instance court found the Defendant guilty of the conjunctive facts charged without omitting any judgment on the primary facts charged, whether the conclusion of the first instance court's judgment is erroneous when it is legitimate.

In a case where a public prosecution is instituted including a primary claim and a preliminary claim, it is interpreted that the court has expressed the intention of rejecting a secondary claim so long as the primary claim has been convicted for any one of the preliminary claims, as a result of the trial, so long as the court has tried to do so, it is not necessary to explain the reason of rejection in the reasoning of the judgment.

Article 323 of the Criminal Procedure Act

Defendant 1 and one other

Prosecutor and Defendants

Seoul Criminal Court of the first instance (64 High Court Decision 1103)

All of the Prosecutor and the Defendants’ appeals are dismissed.

The gist of the Reasons for Appeal by the Prosecutor is that, in light of the evidence revealed in the record, the first, even though it can be sufficiently recognized that the facts constituting the crime of insurrection against the Defendants have been committed, the court below's action which did not recognize it, and second, the prosecutor's request for public trial on the case was changed first [the defendants are punished for insurrection, and if the primary request is not permissible, it is the preparatory demand, and it should be punished for the violation of the Assembly and Demonstration Act. The court below should first judge the primary request, and if it is not acceptable, it should have judged the conjunctive request as non-existent. However, the court below found that the defendant's defense counsel did not have any influence on the establishment of the crime of insurrection against the primary requester, and it should be found that the defendant's defense counsel did not have any influence on the conclusion of the judgment, and thus, the court below found that the defendant's primary request for appeal and the facts charged are not unlawful since it did not have any influence on the conclusion of the judgment, and thus, the court below's conviction and the defendant's defense counsel did not have any error.

Therefore, even if all the evidence recorded in the records are considered to be comprehensively examined as to the prosecutor's first ground for appeal, it cannot be concluded that the defendant participated in the demonstration for the purpose of harming the national land or subverting the Constitution. Therefore, this issue is without merit. Second, according to the prosecutor's argument of violation of the law, which is the ground for appeal, the prosecutor's second ground for appeal, in instituting the case of this case, the prosecutor filed a motion for a public trial for the first time with the primary claim as a crime of insurrection, the requirements of the conjunctive claim, and the violation of the Assembly and Demonstration Act. The court below acknowledged only the preliminary claim without any determination as to the above primary claim. However, in the case where the public prosecution was instituted including the primary claim and the preliminary claim, as a result of the examination of the court, it can be interpreted that the first claim or the second claim was rejected as long as the first claim was found guilty, and therefore, it is not necessary to explain the reason why the new claim is rejected in the judgment. This is also groundless.

Next, this paper examines Defendant 2’s argument of mistake of facts, which is the first ground for appeal, and then examines various evidences duly examined by the court below based on the records, the criminal facts against the defendant, which the court below decided, are sufficient to acknowledge it, and otherwise, it cannot be found that the court below erred in recognizing facts as stated in its reasoning. Therefore, this paper is groundless.

Then, considering the prosecutor's third ground of appeal and defendant 2's second ground of appeal, all circumstances that are conditions for sentencing as shown in the case-by-case records are examined, and the sentencing of the defendant by the court below is appropriate, and there is no other reason to find that there is any other reason to deal with the defendant more heavily or less than that of the defendant. Thus, there is no question about this point.

(2) Defendant 1’s appeal is dismissed in accordance with Article 361-4 of the Criminal Procedure Act, since Defendant 1 did not file an appellate brief within the period for filing the appellate brief.

Therefore, the judgment of the court below is just and without merit, and all appeals by the prosecutor and the defendant 2 are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act.

It is so decided as per Disposition for the above reasons.

Judges Jeong Tae-won (Presiding Judge)