The case where there is an error of not declaring the dismissal of an appeal in the disposition after judging that there is no reason for appeal in the grounds for appeal.

In the first instance court, the prosecutor appealed from the prosecutor's appeal after being acquitted, while the appellate court judged that the prosecutor's appeal is groundless in its reasoning, it is erroneous in the order that the dismissal of appeal is not ordered.

Article 364 of the Criminal Procedure Act

Supreme Court Decision 74Do619 Delivered on July 22, 1975

Defendant

Prosecutor

Cheongju District Court Decision 80No225 delivered on March 27, 1981

1. Of the acquitted portion of the judgment of the court below, the part concerning the charge of acquiring the pecuniary advantage equivalent to 2,400,000 won from the victim's meat is reversed, and this part of the case is remanded to the Cheongju District Court Panel Division.

2. The prosecutor's appeal on the part other than the above reversal part among the non-guilty part of the judgment below is dismissed.

We examine the prosecutor's grounds of appeal.

According to the reasoning of the judgment below, the court below found the defendant not guilty on the ground that there is no proof of a crime as to the fact that the defendant, among the facts charged in this case, had the representative director of the victim club construction corporation, had the victim take up about 30 million won construction expenses and completed about 80% construction expenses, and had the above victim take over about 30% construction expenses and completed the above construction works, and obtained pecuniary benefits equivalent to the same amount from the above victim. In light of the records, the court below's decision that acquitted the defendant on the ground that the defendant was just and justified in the measures of the court below which found the defendant not guilty, and there is no error of law of misunderstanding the legal principles of fraud such as theory of lawsuit.

However, among the facts charged in this case, the court of first instance rendered a verdict of innocence and appealed by the prosecutor on the charges that deceiving the victim's meat and by failing to pay 2,400,000 won a salary to that person, the prosecutor appealeds the prosecutor's appeal on the grounds that the prosecutor's appeal is groundless, but the order does not contain an error of law in violation of the law since it did not issue a declaration of rejection in the order (see Supreme Court Decision 74Do619 delivered on July 22, 1975).

Therefore, among the non-guilty parts of the judgment of the court below, the part on the fraud regarding the above victim's meat is reversed and remanded to the Cheongju District Court Panel Division, and the prosecutor's appeal on the remainder of the non-guilty part is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Lee Sung-soo (Presiding Justice)