The judgment below

Of them, the part on Defendant B shall be reversed.

Defendant

The appeal against A is dismissed.

The grounds of appeal are examined.

1. As to Defendant B’s ground of appeal (Ground of appeal No. 1)

A. According to the main sentence of Article 420 of the Criminal Procedure Act, a retrial may be requested for the benefit of a person who has been pronounced guilty in a final judgment.

If a final appeal is filed against a conviction of the appellate court and the judgment of the appellate court is pending, and the decision of dismissal of prosecution is finalized pursuant to Articles 382 and 328(1)2 of the Criminal Procedure Act, the appellate court’s conviction becomes void as a matter of course. In such a case, it cannot be deemed that there exists a final judgment, which is the premise of the retrial procedure under the Criminal Procedure Act.

However, in a case where the defendant et al. filed a request for a retrial against a conviction of an appellate court which lost its validity due to a decision dismissing public prosecution as above, when the court once rendered a decision of commencing a retrial against this issue, and when the decision of commencing a retrial becomes final and conclusive due to the failure of both the prosecutor and the defendant, etc. to appeal, the subject of the decision of commencing a retrial becomes final and conclusive as a conviction of the appellate court, and the court which proceeds from a retrial following

However, in this case, the decision of commencing a new trial is subject to a conviction of an appellate court where it is impossible to commence a new trial, so the court which proceeds from a new trial according to the decision of commencing a new trial cannot hold any trial because it is not subject to a trial

(see, e.g., Supreme Court Decision 2011Do10626, Apr. 11, 2013). B.

According to the records, Defendant B filed an appeal in the judgment of the first instance court of this case, which sentenced life imprisonment, and appealed after the Seoul High Court sentenced 82No325 decided May 10, 1982 to seven years of imprisonment and seven years of suspension of qualification. However, Defendant B died on July 4, 1982, which was pending in the court of final appeal, and thus dismissed the prosecution on July 27, 1982.