A. The case which reversed the judgment of the court below which found the guilty due to the incomplete hearing and the violation of the rules of evidence. However, in the case where only the prosecutor appeals against the acquittal portion due to the conviction portion and the acquittal portion among the facts charged in relation to the blanket crime, the object

(a) The case reversing the judgment of the court below on the ground that there was an error of finding the amount appropriated as the material price out of the contract amount of the company that the original contractor had contracted the construction work as the material price where the chairperson, etc. of the village structure improvement project promotion committee acknowledged the fact that he embezzled the amount equivalent to the same amount by overappropriating the input price for the materials in excess of the amount of the input price for the construction work; and

B. Of the facts charged in relation to a comprehensive crime, the prosecutor only filed a final appeal against the judgment of partial innocence and the judgment of the remaining innocence, and the Defendant’s final appeal by the prosecutor under the principle of no appeal due to the principle of no appeal shall fully affect the judgment’s conviction and the judgment of innocence. Therefore, the part of conviction shall also be transferred to the Supreme Court

A. Article 35(1) of the Criminal Act, Article 307 of the Criminal Procedure Act, Articles 342(2) and 384 of the Criminal Procedure Act

Defendant 1 and one other

For the first defendant, the Prosecutor's Appeal (for the second defendant)

Seoul Criminal Court Decision 85No6157 delivered on April 1, 1986

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

1. First, Defendant 1’s appeal is examined as grounds for appeal.

According to the reasoning of the judgment of the court below, Defendant 1 is the chairman of Gangseo-gu Community Structure Project Promotion Committee in Seoul, Defendant 2 is the chairman of the said Committee, Defendant 2 is collected from residents of the said Committee, or received and disbursed housing site construction cost from residents of Seoul, 80,539,80 on August 8, 1979, and then embezzled money of KRW 39,024,889 on personal use for 70,000, KRW 70,000, KRW 279 on the facts charged that the Defendants first purchased 70,000, KRW 70,000, KRW 270 on the basis of 70,000 on the basis of 70,000, KRW 97,000 on the basis of 70,000 on the first 60,000 on the basis of 70,000,000 won on the basis of 70,07,000 won on the basis of the above facts charged.

The purport of the judgment of the court below is that the amount of construction work under the contract for tin construction work with the Pacific Construction Co., Ltd. was KRW 60,982,122, and the amount of remuneration for technical services was set as KRW 27,973,00 in the subsequent revised contract. The materials cost actually invested in the tin construction work should be calculated by deducting wages and technical services from the total construction cost, on the premise that the amount of the said total construction cost would be KRW 33,009,122 ( KRW 60,982, 227,973,00).

However, based on the original facts that the amount of construction works, wages, and technical services under the contract for tin construction works with the Pacific Construction Co., Ltd. was determined as at the time of original adjudication, it is only possible to determine whether the above contract for the above company was included in the amount of material cost, and it cannot be concluded that the actual price of material inputs by the Defendants would be the amount obtained by deducting the amount of wages and technical services from the construction cost under the above contract.

The court below's determination of the amount of embezzlement of the defendants on the premise of the above facts without examining the price of the materials actually input into the above tin construction, and found the defendants guilty of the above part of the facts charged, is erroneous in the incomplete hearing and in the violation of the rules of evidence.

2. We examine the Prosecutor’s grounds of appeal.

According to the reasoning of the judgment below, among the facts charged in this case, the defendants embezzled KRW 60,00 out of the total price of 3,00,000 village hall at the original city, KRW 3,212,160 out of the total price of the loan, KRW 25,96,358, KRW 1,500, KRW 165,885, KRW 165,465, and KRW 1,678,780 out of the registration cost of the purchase of road site, and KRW 130,00,00 among the facts charged in this case, the court below found that there was no evidence that Defendant 1 paid KRW 1,157,00 among the total price of the village hall at the original city, KRW 3,212,160, KRW 20, KRW 200, KRW 130,000 from the warehouse of the village hall, and there was no error in the facts that Defendant 1, 2636166, and 27000.

3. Furthermore, scambling ex officio.

According to the judgment of the court below and the records, the court below found Defendant 2 guilty only on the part of the facts charged in this case which is a comprehensive crime against the defendant 2, and found the defendant 2 not guilty on the remaining facts charged without proof of the crime. The prosecutor appealed against the above part of the facts charged and the defendant 2 did not appeal. However, according to the principle of no appeal, the part which found the defendant 2 guilty as to the defendant 2 was transferred to the court of final appeal and shall be subject to an adjudication by a party member. As seen above, it is erroneous in the judgment that the court below found the defendant 2 guilty on the embezzlement of the cost of creating the housing site, and its illegality affected the conclusion of the judgment, so the part against the defendant 1 should be reversed in its entirety and the above grounds for reversal against the defendant 1 should also be reversed in accordance with Article 392 of the Criminal Procedure Act.

4. Therefore, the judgment of the court below which is not necessary to determine other grounds of appeal is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating judges

Justices Song Man-man (Presiding Justice)