[1] In a case where a retrial was commenced, where there is no ground for retrial, but the statute on protective custody claim included in the subject of a retrial was revised or abolished after the judgment subject to a retrial, the statute applicable to protective custody claim (=the statute at the time of the new judgment

[2] The case affirming the judgment below holding that a claim for protective custody should be dismissed pursuant to Article 3 of the Addenda to the repeal of the Social Protection Act, in a case where the former Social Protection Act, which is the basis of the judgment, was repealed after the judgment was rendered, although there was no ground for retrial for habitual fraud, among the criminal facts of the judgment subject to review

[1] In a case where a new trial was commenced, where the law on criminal facts without any ground for new trial was amended or abolished after the judgment for new trial, the law on criminal facts shall be applied at the time of the judgment for new trial. This legal doctrine is reasonable to deem that the law on protective custody claim, which is pending in the judgment subject to new trial, is likewise applicable to the case where the law on protective custody claim

[2] In a case where the crime of habitual fraud, which is a fact of claim for protective custody, among the criminal facts of the judgment subject to a retrial against the defendant for whom a retrial has commenced, did not exist any grounds for retrial, but the former Social Protection Act (repealed by Act No. 7656 of Aug. 4, 2005) which is the basis of the judgment subject to retrial was repealed after the judgment subject to retrial, the case affirming the judgment below holding that the above protective custody claim should be dismissed in accordance with Article 3 of the Addenda of the repealed Act, which provides that the court shall dismiss the judgment with respect to the protective custody claim for which the judgment is pending at the time of the enforcement

[1] Article 1(1) and (2) of the Criminal Act; Articles 420 and 438 of the Criminal Procedure Act / [2] Articles 347(1) and 351 of the Criminal Act; Articles 5 subparag. 1 and 2, and 20(5) of the former Social Protection Act (Act No. 7656 of Aug. 4, 2005); Articles 2 and 3 of the Addenda to the former Social Protection Act (amended by Aug. 4, 2005); Article 326 subparag. 4 of the Criminal Procedure Act

[1] Supreme Court en banc Decision 96Do477 Decided June 14, 1996 (Gong1996Ha, 2282) Supreme Court en banc Decision 2008DaDo11 Decided January 20, 201 (Gong201Sang, 508)

Defendant

Prosecutor

Seoul High Court Decision 2010No1849 decided September 30, 2010

The appeal is dismissed.

The grounds of appeal are examined.

1. In a case where a new trial was commenced, where the statutes on criminal facts without any ground for new trial were amended or repealed after the judgment for new trial, the said criminal facts shall be subject to the law at the time of the judgment for new trial (see Supreme Court en banc Decision 96Do477, Jun. 14, 1996; Supreme Court Decision 2008JDo11, Jan. 20, 201). Such a legal principle is likewise applicable to cases where the statutes on protective custody claims, which are pending in the judgment subject to new trial, are amended or abolished after the judgment for new trial, without any ground for new trial.

2. On the grounds of the judgment on the instant case, the lower court determined that the instant claim for protective custody should be dismissed pursuant to Article 3 of the Addenda to the repealed Act, on the grounds that the former Social Protection Act (repealed by Act No. 7656, Aug. 4, 2005), which became the basis for the claim for protective custody at the time of the instant judgment subject to review, was repealed by the repealed Act (Act No. 7656, Aug. 4, 2005) after the said judgment subject to review, and Article 3 of the Addenda to the repealed Act provides that the dismissal judgment should be made with respect to the instant case subject to protective custody for which the said judgment is pending

In light of the above legal principles and records, the judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there are no errors in the misapprehension of legal principles as to the scope of review, etc., and the prosecutor appealed against the accused case among the judgment of the court below, but the appellate brief did not contain any indication of the grounds of appeal

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)