In a case where a judgment of conviction has become final and conclusive on a final judgment of conviction, whether the previous final and conclusive judgment loses its effect (affirmative)

Article 438(1) of the Criminal Procedure Act

Supreme Court Order 2004Mo453 Delivered on September 28, 2005

Defendant

Defendant

Attorney Jong-chul

Daegu High Court Decision 2017No25 decided April 13, 2017

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

Judgment ex officio is made.

1. Where a decision of commencing a new trial becomes final and conclusive on a conviction, and the court declares a new trial on the relevant case, and where such new judgment becomes final and conclusive, the previous final and conclusive judgment shall naturally lose its effect (see Supreme Court Order 2004Mo453, Sept. 28, 2005, etc.).

2. According to records, etc., the following facts are revealed.

A. On January 9, 2014, the Defendant was sentenced to three years of imprisonment by the Daegu High Court for a crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Aggravated Punishment Act”), and the judgment became final and conclusive on August 21, 2016 (hereinafter “the final and conclusive judgment of this case”).

B. (1) The first instance court held that the crime of larceny and its attempted crime committed habitually from September 2, 2016 to October 19, 2016, including the final judgment of this case, constituted a crime of larceny and its attempted crime, under the premise that the crime was committed within three years after the execution of the sentence was completed by the final judgment of this case. The first instance court maintained the first instance court’s decision on the following grounds: “A crime of larceny, etc. committed habitually under Articles 329 through 331 of the Criminal Act (hereinafter “the crime of larceny, etc.”) under Article 5-4(6) of the Specific Crimes Aggravated Punishment Act (hereinafter “the crime of larceny, etc.”), which was sentenced twice or more to the crime of larceny, etc. under Articles 329 through 331 of the Criminal Act.”

C. However, on March 7, 2017, the Daegu High Court (2017 No. 2017) rendered a new trial on the instant final judgment and sentenced the Defendant to three years of imprisonment on May 2, 2017 (hereinafter “instant new judgment”), and the instant new judgment became final and conclusive on May 11, 2017.

3. Examining the above facts in light of the legal principles as seen earlier, since the final judgment of this case naturally becomes null and void after the crime of this case was committed in the judgment of the court of first instance and became final and conclusive, the crime of this case in the judgment of the court of first instance cannot be deemed to have been committed within 3 years after the execution of sentence was completed by the final judgment of this case. Therefore, on a different premise, the judgment of the court of first instance and the judgment of the court of this judgment that held that the crime of this case in the judgment of the court of first instance constituted Article 5

4. Therefore, without examining the grounds of appeal, we reverse the lower judgment, and remand the case to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)