[1] In a case where the retrial court rendered a decision to commence a retrial on the whole judgment, even though there are grounds for the request for a retrial only to a part of the final judgment which rendered an indivisible sentence by recognizing a number of concurrent crimes as guilty, which are in the relationship of concurrent crimes, whether a new sentencing is against the principle of prohibition of double punishment under the Constitution (negative), and whether the principle of prohibition of disadvantageous alteration is applied (affirmative)

[2] The purport of Article 439 of the Criminal Procedure Act stating that "no more severe punishment than that of the original judgment shall be imposed in the retrial" / Whether the original judgment naturally loses its effect upon confirmation of the nature of the retrial procedure, and whether the original judgment becomes final and conclusive (affirmative), and whether the scope of the effect of the final judgment in the retrial procedure / Whether the original judgment is contrary to the principle of prohibition of alteration to disadvantage or the principle of profit-making retrial in a case where the original judgment has ceased to have effect upon the expiration of the grace period without the invalidation or cancellation of the suspended execution on which the original judgment was rendered. As a result, the original judgment becomes null and void due to the final and conclusive judgment on which the original judgment became void

[1] In a case where a retrial was decided on the commencement of a retrial as to the whole of the judgments in a final and conclusive judgment that found a number of offenses in concurrent crimes guilty and sentenced one of them as grounds for a retrial were recognized, but one of them was formally sentenced, it cannot be deemed as violating the principle of prohibition of double punishment under the Constitution, as the principle of prohibition of double punishment is applied, and only a more severe punishment than that in the original judgment is not imposed.

[2] The Criminal Procedure Act only permits so-called re-deliberation that a request for re-examination may be made for the benefit of a person who has been rendered a final judgment of conviction and a final judgment of dismissing an appeal or final appeal (Articles 420 and 421(1)). In light of the principle of re-deliberation, Article 439 of the Criminal Procedure Act provides, “No sentence heavier than that of the original judgment shall be imposed” (Article 439). This simply does not mean the principle that no sentence heavier than the original judgment cannot be imposed, but rather, it is the purport that re-examination shall be conducted to the extent that it does not undermine the legal stability of the defendant.

However, a retrial proceeding is not a follow-up procedure of the previous litigation procedure examining the propriety of the original judgment, but a complete new litigation procedure to decide the case itself from the beginning, and the original judgment becomes final and conclusive, and the original judgment becomes null and void as a matter of course. This is derived from the inherent nature of a retrial to reverse legal stability maintained by the final and conclusive force of the judgment in order to realize a specific justice in a case where there is a serious defect in the final and conclusive judgment. Therefore, once a new judgment becomes final and conclusive, the effect of the original judgment or its incidental disposition becomes null and void due to the invalidation of the original judgment’s original judgment’s legal effect and its incidental disposition, is natural in light of the inherent nature of retrial, and thus, it does not mean that even if the Defendant

Therefore, even in cases where a new judgment with a new punishment has been rendered after the grace period, without invalidation or cancellation of the suspended sentence sentenced by the original judgment, the effect of the sentence on the original judgment is invalidated due to the lapse of the grace period, on the grounds that the effect of the sentence on the original judgment is the legal effect of the suspended sentence, on which the original judgment becomes final and conclusive, and thus, on the ground that the original judgment becomes null and void as a matter of course, this cannot be viewed as the execution of the sentence, and even if the original judgment loses its legal effect upon the final and conclusive judgment, if the sentence on the suspended sentence becomes null and void, it cannot be deemed as contrary to the principle of

[1] Article 13(1) of the Constitution, Article 37 of the Criminal Act, Article 439 of the Criminal Procedure Act / [2] Articles 420, 421(1), 438(1), and 439 of the Criminal Procedure Act

[1] Supreme Court Decision 2014Do10193 Decided November 13, 2014 (Gong2014Ha, 2409) / [2] Supreme Court Decision 2010Do14282 Decided January 24, 2013 (Gong2015Ha, 1832), Supreme Court Decision 2017Do4019 Decided September 21, 2017 (Gong2017Ha, 2042)

Defendant

Defendant

Law Firm Tak, Attorney Cho Dong-hee

Seoul Central District Court Decision 2015No2323 decided September 24, 2015

The appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

A. In a case where a new trial was rendered on the whole of a final and conclusive judgment that found one of several concurrent crimes guilty and sentenced one of them as grounds for the request for a new trial, but one of them was formally sentenced, and thus, the new trial court is required to render a new sentencing for crimes for which no grounds for a new trial exist, and thus, it cannot be deemed as violating the principle prohibiting double punishment under the Constitution. However, a more severe punishment than that of the original judgment is not imposed (see, e.g., Supreme Court Decision 2014Do10193, Nov. 13, 2014).

B. The lower court determined to the effect that: (a) (i) the Defendant was sentenced to a suspended sentence of two years on January 15, 2009 to a one-year imprisonment with prison labor for a crime of adultery and bodily injury at the Seoul Central District Court on January 15, 2009; (b) the Defendant, upon the Constitutional Court’s decision on March 17, 2015 as to Article 241 of the Criminal Act, filed a request for retrial under Article 47(3) and (4) of the Constitutional Court Act on March 17, 2015; (c) the first instance court rendered a decision on commencing a retrial on April 16, 2015; and (d) on May 29, 2015, the Defendant was acquitted on the ground that a penal provision was invalidated; and (e) sentenced to a fine of four million won on the charges of bodily injury; and (b) the Defendant was not subject to a suspended sentence for a new violation of the principle of res judicata.

Examining the reasoning of the lower judgment in light of the record, the lower court’s determination was based on the legal doctrine as seen earlier, and did not err by misapprehending the legal doctrine on the prohibition of double punishment and the prohibition of double punishment.

2. Regarding ground of appeal No. 2

A. Article 420 and Article 421(1) of the Criminal Procedure Act provides that a retrial may be requested for the benefit of a person who has been rendered a final judgment of conviction and a final judgment dismissing an appeal or final appeal, thereby allowing so-called “for the benefit of a person who has been rendered a final judgment, no penalty heavier than that on the original judgment shall be imposed” in Article 439, which reflects the principle of review on such benefit. This simply does not mean the principle that no sentence heavier than the original judgment cannot be imposed, but rather means that a retrial shall be conducted to the extent that it does not undermine the legal stability of the defendant (see Supreme Court Decision 2012Do2938, Oct. 29, 2015).

However, a retrial proceeding is not a subsequent procedure of the previous litigation that examines the propriety of the original judgment, but is a completely new litigation procedure that re-examines the case itself from the beginning (see, e.g., Supreme Court Decision 2010Do14282, Jan. 24, 2013). When a new judgment becomes final and conclusive, the original judgment becomes void as a matter of course (see, e.g., Supreme Court Decision 2017Do4019, Sept. 21, 2017). If a serious defect in a final and conclusive judgment exists, the essence of a retrial that leaves the legal stability maintained by the final and conclusive power of the judgment and re-examines the case itself in order to realize specific justice. Therefore, the effect of the original judgment or its incidental disposition becomes void as a result of the final and conclusive judgment becomes null and void. Therefore, it is natural in essence that the effect of the original judgment itself becomes null and void, and thus, does not impair the legal status of the defendant that should be protected in the retrial.

Therefore, even in cases where a new judgment with a new punishment has been rendered after the grace period, without invalidation or cancellation of the suspended sentence sentenced by the original judgment, the effect of the sentence on the original judgment is invalidated due to the lapse of the grace period, on the grounds that the effect of the sentence on the original judgment is the legal effect of the suspended sentence, on which the original judgment becomes final and conclusive, and thus, on the ground that the original judgment becomes null and void as a matter of course, this cannot be viewed as the execution of the sentence, and even if the original judgment loses its legal effect upon the final and conclusive judgment, if the sentence on the suspended sentence becomes null and void, it cannot be deemed as contrary to the principle of

B. On the grounds stated in its reasoning, the lower court rejected the allegation in the grounds of appeal that the sentence of a fine in a judgment subject to retrial goes against the principle of prohibition of disadvantageous alteration even after the period of stay of execution of the judgment subject to retrial has expired, on the following grounds: (a) the Defendant’s occurrence of a sentence after the final judgment became final and conclusive is not “execution of sentence,” but is merely a legal effect, such as loss of validity of sentence due to the lapse of time, and that the retroactive extinction of such legal effect would inevitably result in the nature of a retrial that loses the effect of a final and conclusive judgment.

Examining the reasoning of the judgment below in light of the records, although the reasoning of the judgment below is somewhat insufficient, the judgment of the court below that the new judgment does not violate the principle of prohibition of disadvantageous alteration is just and it is not erroneous in the misapprehension of legal principles as to the principle of prohibition of disadvantageous alteration in the retrial, contrary to

Supreme Court Decision 2012Do2938 Decided October 29, 2015 cited as the grounds of appeal is related to a case in which the effect of a sentence of punishment is lost depending on a special amnesty that took place after the original judgment was rendered, and it differs from the case in which the effect of a sentence is lost due to the legal effect of the original judgment itself, and thus, it is inappropriate to invoke it in the instant case.

3. Conclusion

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

Justices Kwon Soon-il (Presiding Justice)