Do 2016 Do 8612 A. Murder (Death, etc. resulting in Preliminary Bodily Injury, Defendant A, B, and C

206. Bodily Injury to life of a crime

(b) Violation of the Act on Punishment of Violence, Etc. (Assaults, deadly Weapons, etc.);

(Recognized Special Violence)

(c) coercion;

D. Violation of the Medical Service Act

(e) Violation of the Act on Punishment of Violence, etc. (Joint Assaults)

D Habitual assault against the name of a crime recognized as such

F. Cruel exercise of force (part on Defendant D)

Indecent Acts by force, such as the name of a crime committed;

(g) Violence (the name of a crime recognized as Defendant D habitually;

Name of the crime partially recognized against Defendant A,

Special Intimidation)

H. Cruel abuse of authority

(i) Helping and aiding a crime under an altered name;

(j) Abandonment of duties;

(k) Fashion;

(l)Destruction of property;

(m)Intimidations (the name of partial recognized offence, habitual intimidation, partial alterations);

Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes

[Crimes, etc.]

(n) Violation of the Act on the Punishment of Arrangement of Commercial Sex Acts;

(o) Violation of the Act on Punishment of Violence, Etc. (Habitual Coercivement)

Name of a crime, coercion, habitual intimidation, habitual assault)

(p) Forced indecent acts such as soldiers;

(c) Contempt;

(r) Murine;

(s) Attempted indecent acts committed by military personnel and others;

(t) Violation of the Act on Punishment of Violence, Etc. (Recognition of Habitual Intimidation)

Habitual assault, Habitual Intimidation)

1. A. (b)(d)(f)(f)(l)(f)(h)(h)(h)(r)(r)(r)(s).

D

2.(a)(c)(e)(g)(h)(h)(n); and

A

3.(a)(b)(e)(l).

B

4. (a)(f)(l).

C

5.(b)(j).

E

Defendant and Military Prosecutor

F. Corporation F. (for Defendant D)

Attorney G in charge

Attorney H (Korean National Assembly for Defendant A)

Corporation I (for Defendant B)

Attorney J, K in charge

Attorney L (for Defendant C)

Attorney M (Korean National Assembly for Defendant E)

N. Law Firm Corporation (Attorney Lee In-bok, Counsel for defendant E) 0

P. Legal entity (for defendant E), the attorney-at-law in charge

Supreme Court Decision 2015Do5355 Decided October 29, 2015

High Court Decision 2015No 403, 2016 Do44 decided June 3, 2016 (Joint)

August 25, 2016

all appeals shall be dismissed.

The grounds of appeal (the supplementary statement of the grounds of appeal by Defendant E-Defense Counsel submitted after the lapse of the period for submitting a statement of grounds of appeal) shall be determined to the extent that it supplements the grounds of appeal.

1. As to the grounds of appeal by Defendant D, the part rejected by the court of final appeal on the grounds of appeal on the ground of appeal that the grounds of appeal are groundless is no longer asserted, and the final binding force is generated at the same time as the judgment is rendered, and this part cannot be contested, and the court remanded.

In light of the above legal principles, we cannot make a judgment contrary thereto (see, e.g., Supreme Court Decisions 2006Do920, May 11, 2006; 2008Do8661, Feb. 12, 2009). Examining the records of this case in light of the above legal principles, we can find that the facts of this case as to Defendant D’s charge of murder among the facts charged against Defendant D and the point of forced indecent act, such as military personnel, are true in the remand judgment, and that there was a final appeal as the grounds of appeal disputing Defendant D’s conviction were dismissed, and that there was a final judgment as to guilty. Thus, the facts of this case’s appeal are erroneous.

The assertion of the purport of disputing the judgment of conviction of the court below after remanding on the ground of misunderstanding of legal principles is related to the part on which the final and conclusive power had already occurred, and it cannot be deemed a legitimate ground for appeal.

In addition, examining various circumstances that are the conditions of sentencing as shown in the records, such as Defendant D’s age, character and conduct, environment, family relation, motive, means and consequence of the crime, and circumstances after the crime, etc., the amount of punishment of the court below that sentenced Defendant D for 40 years cannot be deemed to be extremely unfair.

2. As to Defendant A’s grounds for appeal, the argument purporting that the legal principles of sentencing judgment and the Supreme Court’s sentencing criteria are illegal in the judgment of the original court constitutes an unfair argument for sentencing. However, according to Article 383 Subparag. 4 of the Criminal Procedure Act, an appeal against Defendant A for the reason of unfair sentencing is allowed only in the case where death penalty or imprisonment with or without labor for an indefinite term or for not less than ten years, or imprisonment with or without labor for not less than ten years, and thus, the allegation that Defendant A’s punishment is unfair in the instant case where Defendant A was sentenced to a more minor punishment cannot be deemed a legitimate ground for appeal.

3. According to Article 383 subparag. 4 of the Criminal Procedure Act as to the grounds for appeal by Defendant B, an appeal against Defendant B is permitted only in the case where death penalty, imprisonment with prison labor for life or for more than ten years, or imprisonment without prison labor for more than ten years is sentenced. Thus, the allegation that Defendant B’s judgment of punishment is unfair in the instant case where Defendant B was sentenced to a minor punishment, cannot be a legitimate ground for appeal.

4. As to Defendant C’s grounds of appeal

According to the record, Defendant C appealed against the judgment of the first instance, and only asserted the illegality of sentencing on the grounds of appeal. In such a case, Defendant C’s assertion to the effect that there is illegality of mistake of fact as to the fact of injury or death in the judgment of the first instance cannot be a legitimate ground for appeal.

Furthermore, according to Article 383 subparag. 4 of the Criminal Procedure Act, only in the case of death penalty, life imprisonment, imprisonment with or without prison labor for more than ten years, or imprisonment without prison labor, a final appeal against Defendant C for the reason of unfair sentencing is allowed. Thus, the argument that Defendant C was unfair in the amount of punishment in the instant case, which was sentenced to a more minor punishment, does not constitute legitimate grounds for final appeal.

5. According to Article 383 subparag. 4 of the Criminal Procedure Act with respect to Defendant E’s grounds for appeal, an appeal against Defendant E solely for the reason of death penalty, imprisonment with prison labor for life or for not less than ten years, or imprisonment with prison labor for not less than ten years is allowed. Thus, the allegation that Defendant E’s judgment of punishment is unfair in the instant case where Defendant E was sentenced to a minor penalty cannot be a legitimate ground for appeal.

6. Examining the reasoning of the original judgment in light of the record as to the grounds for appeal by the military prosecutor, it is reasonable to maintain the judgment of the first instance which rendered a verdict of not guilty on the ground that there was no proof of the offense against Defendant A, B, and C, among the facts charged in the instant case against Defendant A, B, and C on the grounds as indicated in the judgment of the court below, on the ground that there was no proof of the offense. Moreover, it is not unlawful that it violated the legal principles of logic and experience and violated the limitation of the principle of free evaluation of evidence.

In addition, the part which was rejected by the court of final appeal on the ground that there was no ground for appeal as to the allegation of the grounds for appeal in the final appeal cannot be raised as to this part of the judgment at the same time as the ruling was rendered, and the court that was remanded cannot make a judgment contrary to this (see Supreme Court Decisions 2006Do920, May 11, 2006; 2009Do8661, Feb. 12, 2009; 2008Do8661, etc.). Examining the records of this case in light of the above legal principles, regarding the fact that the lower court's subordinate criminal justice among the facts charged against Defendant E in the instant case is erroneous in the judgment of final appeal, and the grounds for appeal against Defendant E was rejected, and this part of the judgment of final appeal is not a legitimate ground for appeal.

또한, 피고인 에 대하여 사형, 무기 또는 10 년 이상의 징역 이나 금고 의 형 이 선고 된 경우 에 있어서도 군사 법원 법 제 442 조 제 7 호, 형사 소송법 제 383 조 제 4 호의 해석상 검찰관 은 그 형 이 심히 가볍다 는 이유로 는 상고 할 수 없으므로 ( 대법원 1994. 8. 12. 선고 94도1705 판결, 대법원 2011. 4. 28. 선고 2010 도 17829, 2010 전도 177 판결 등 참조 ) , 피고인 D 에게 징역 40 년 을 선고 한 원심 의 형 의 양정 이 부당 하다는 취지 의 주장 은 적법한 상고 이유 가 되지 못한다 .

Meanwhile, although the military prosecutor appealed against the entire judgment of the original court, there is no statement in the petition of appeal or the reasoning of appeal as to the remaining convicted portion.

7. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Sang-ok

Justices Lee Sang-hoon

Justices Kim Chang-suk

Justices Jo Hee-de