The case affirming the judgment of the court of first instance which found the defendant guilty of larceny by a simple trial procedure even though the defendant denied the charges, where the court below erred by misapprehending the legal principles on the summary trial procedure or by finding the defendant guilty without any evidence.

If the defendant denies the facts charged of larceny, the facts charged of larceny is not subject to a trial by a summary trial procedure, and therefore, the remaining evidence except the defendant's statement in the court cannot be used as evidence for conviction of the facts charged of larceny unless it is admissible as evidence after undergoing due process of investigation of evidence by the general procedure, but it is found that the court of first instance which found the defendant guilty of the facts charged of larceny as evidence without going through such procedure is a evidence which duly completed the examination of evidence, and that the court below erred by misapprehending the legal principles on the summary trial procedure, or by finding the defendant guilty of the facts charged of larceny without any evidence in violation of Article 307 of the Criminal Procedure Act, and thereby affecting the conclusion of the judgment.

Articles 286-2, 307, and 318-3 of the Criminal Procedure Act

A

Defendant

Seoul District Court Decision 95No1368 delivered on June 29, 1995

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

We examine the grounds of appeal.

According to the records, the first instance court decided and notified that all of the facts charged of this case should be judged through a simplified trial procedure by deeming that the evidence at the time of the first instance court's decision was admissible pursuant to Article 318-3 of the Criminal Procedure Act, and sentenced to a fine of KRW 2,00,00 as to the crime of larceny in its ruling, and sentenced to a suspended sentence of KRW 1 year for eight months as to the crime of larceny in its ruling. The first instance court found the defendant guilty of larceny in its ruling by misunderstanding the facts of the first instance court even though the defendant did not commit the crime of larceny in this case. The second instance court's sentence is too unreasonable because the sentence of the first instance court is too unreasonable, the court below rejected the above facts charged of larceny in light of the evidence duly adopted by the first instance court after considering the evidence evidence examination, and the first instance court's decision was justified by applying Article 318-3 of the Criminal Procedure Act to the crime of larceny in this case, and the second instance court's punishment of punishment as to the defendant's character, character and behavior and environment as well as the second instance's sentencing.

However, according to the trial records of the court of first instance (No. 7), the defendant confessions against the charge of the violation of the Building Act, but when the prosecutor examines the charge of the larceny of this case, the charge of the larceny of this case is stated that the facts of the charge of the larceny of this case are different from the facts, but the "whether the prosecutor takes building materials" is stated that the judge's examination "it is done with notice", and eventually, it is obvious that he denies the charge of the larceny of this case (as a result of the record, the defendant asserts that he consistently used the building materials of this case by the investigative agency that he would be suitable for using the building materials of this case).

Therefore, among the facts charged in this case, the thief's charges of larceny are not subject to a trial by a summary trial procedure, and therefore, the remaining evidences except the defendant's statement in the court of first instance cannot be used as evidence for conviction of the thief's charges of this case, unless the admissibility of evidence is granted through a legitimate procedure of investigation by a general procedure, not through a simple trial procedure. However, the first instance court found the defendant guilty of the thief's charges of this case as evidence without going through this procedure. The court below found the above evidence as evidence and found that the defendant committed the thief's crimes of this case according to the above evidence while the above evidence was duly examined. Thus, the court below erred by misapprehending the legal principles on a simple trial procedure, or by finding the defendant guilty of the thief's charges of this case without evidence in violation of Article 307 of the Criminal Procedure Act, which affected the judgment.

However, since the court below sentenced the larceny of this case and the violation of the Building Act to a concurrent crime under the former part of Article 37 of the Criminal Act and sentenced to one punishment, the part of conviction against the violation of the Building Act cannot be reversed together with the larceny part.

Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-hun (Presiding Justice)