[1] In a case where a decision of commencing a new trial becomes final and conclusive as to a final and conclusive judgment of conviction, and the court rendered a new trial and rendered a new trial, whether the previous final and conclusive judgment is naturally null and void (affirmative)

[2] The case holding that in a case where the first instance court and the lower court rendered a aggravated punishment as a repeated offense on the ground that the Defendant was sentenced to imprisonment due to a crime of violation of the Punishment of Violences, etc. Act (a group, deadly weapon, destruction, etc. of a deadly weapon), and that the Defendant committed the crime of injury, etc. within three years after the execution of the sentence, the final judgment became final and conclusive on the ground that the Defendant requested a new trial as to the final judgment prior to a repeated offense, and rendered a decision of commencing a new trial as to the whole of the judgment subject to a new trial, and that the final judgment became null and void as a matter of course as a matter of course

[1] Where a decision of commencing a retrial becomes final and conclusive as to a final judgment of conviction, the court declares a new judgment after making a new trial on the relevant case, and when the new judgment becomes final and conclusive, the previous final judgment becomes void

[2] In a case where Defendant was sentenced to eight months of imprisonment due to a violation of the Punishment of Violences, etc. Act (a violation of the Act on the Punishment of Violences, etc. (a collective action, a deadly weapon, etc.) and the judgment of the court below became final and conclusive (hereinafter “final and conclusive judgment”), and where the first instance court and the court below rendered aggravated punishment as a repeated offense on the ground that he committed the crime of injury within three years after the enforcement of the sentence, the case holding that the execution of the sentence should no longer be completed within three years after the final and conclusive judgment became final and conclusive, on the ground that the Defendant filed a request for a review on the final judgment prior to repeated offense, and the final and conclusive judgment became final and conclusive upon which the Constitutional Court rendered a decision of unconstitutionality during the procedure for commencing a new trial, which became void after which the judgment became final and conclusive by the final and conclusive judgment became final and conclusive, on the ground that there was a ground that there was a ground for retrial under Article 47(4) of the Constitutional Court Act applying Article 366 of the Criminal Act.

[1] Articles 435 and 438 of the Criminal Procedure Act / [2] Articles 35, 257(1), and 366 of the Criminal Act; Articles 2(1)1 and 3(1)(current deleted) of the former Punishment of Violences, etc. Act (Amended by Act No. 13718, Jan. 6, 2016); Article 47(4) of the Constitutional Court Act; Articles 435 and 438 of the Criminal Procedure Act

[1] Supreme Court Order 2004Mo453 dated September 28, 2005

Defendant

Defendant

Attorney Kim Han-young

Chuncheon District Court Decision 2016No531 decided February 16, 2017

The judgment of the court below is reversed, and the case is remanded to the Gangseo branch court of the Chuncheon District Court.

Judgment ex officio is made.

1. Where a decision of commencing a new trial becomes final and conclusive on a conviction, and the court declares a new trial on the relevant case, and where such new judgment becomes final and conclusive, the previous final and conclusive judgment shall naturally lose its effect (see Supreme Court Order 2004Mo453, Sept. 28, 2005, etc.).

2. According to records, etc., the following facts are revealed.

A. On July 16, 2015, the Defendant was sentenced to eight months of imprisonment with prison labor for a violation of the Punishment of Violences, etc. Act (collective, deadly weapons, etc.) in Gangnam Branch Branch of the Chuncheon District Court (hereinafter “instant final judgment”) and the judgment became final and conclusive on November 6, 2015, and completed the execution of the sentence (hereinafter “instant final judgment”).

B. The first instance court: (a) deemed that the crime of injury, etc. was committed by a criminal defendant prior to the instant final judgment from August 4, 2016 to September 20, 2016; and (b) deemed that the crime of injury was committed within three years after the execution of the sentence was completed by the instant final judgment; (c) deemed that it constitutes an aggravated cause for repeated crimes as prescribed in Article 35 of the Criminal Act; and (d) maintained the first instance judgment.

C. The Defendant filed a request for a new trial on the final judgment of this case, which is a repeated crime, and on February 27, 2017, the new trial was rendered on the grounds that Article 3(1) and Article 2(1)1 of the former Punishment of Violences, etc. Act (amended by Act No. 12896, Dec. 30, 2014); Article 366 of the Constitutional Court Act applied Article 3(4) of the same Act (amended by Act No. 12896, Dec. 30, 2014); and the new trial was rendered on April 20, 2017 (hereinafter “instant new trial”); and the new trial of this case became final and conclusive on July 1, 2017.

3. Examining the above facts in light of the legal principles as seen earlier, since the final judgment of this case naturally becomes null and void after the crime of this case was committed in the judgment of the court of first instance and became final and conclusive, the crime of this case in the judgment of the court of first instance cannot be deemed to have been committed within 3 years after the execution of sentence was completed by the final judgment of this case. Therefore, on a different premise, the judgment of the court of first instance and the judgment of the court of this judgment that determined that the crime of this case in the judgment of

4. Therefore, without examining the grounds of appeal, we reverse the judgment below, and remand the case to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)