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The prosecutor's appeal is dismissed.
Reasons
1. The main point of the grounds for appeal (legal scenarios) is the date on which the judgment of the court below became final and conclusive, which goes against the principle of prohibition against disadvantageous changes against the defendant, rather than the date on which the judgment becomes
2. Determination
A. According to the relevant legal principles, the Criminal Procedure Act only permits so-called re-adjudication that a request for re-adjudication may be made for the benefit of the person who has been rendered a final judgment of conviction and the final judgment dismissing an appeal or final judgment of final appeal (Articles 420 and 421(1)). In light of the principle of re-deliberation, Article 439 provides, “No sentence heavier than that of the original judgment shall be pronounced” (Article 439). This simply means the principle that no sentence heavier than that of the original judgment cannot be pronounced, rather than the principle that no sentence heavier than that of the original judgment cannot be imposed, a re-adjudication shall be made to the extent that it does not undermine the legal stability of the defendant.”
However, the retrial procedure is not a follow-up procedure of the previous litigation procedure examining the propriety of the original judgment, but a full new litigation procedure to judge the case itself from the beginning and the original judgment becomes final and conclusive, the original judgment shall lose its
If there is a serious defect in the final and conclusive judgment, this is derived from the nature of the review to withdraw the legal stability maintained by the final and conclusive judgment in order to realize the specific justice and to re-examine the case itself.
Therefore, as a new judgment becomes final and conclusive, the effect of the original judgment or its incidental disposition loses its legal effect and the effect of the original judgment itself is natural in light of the nature of the retrial. Therefore, even if the original judgment loses its effect and the defendant puts any disadvantage on the part of the defendant, this would impair the legal status of the defendant to be protected in the retrial.