Where a judgment of conviction has become final and conclusive in a formal trial procedure for a summary order, the subject of a request for retrial (=final judgment on a crime of oil), and in such case, where a decision to commence a retrial becomes final and conclusive due to a request for a retrial for a summary order, the subject

The main text of Article 420 of the Criminal Procedure Act provides that a request for a retrial may be made for the benefit of a person who has been pronounced guilty. Article 456 of the same Act provides that a summary order shall lose its effect when a judgment is rendered upon a request for formal trial. According to each of the above provisions, in a case where a request for formal trial against a summary order was made and a judgment of conviction became final and conclusive due to the failure of the public prosecutor or the defendant, etc. claiming that there exists a cause for retrial exists a cause for retrial, the defendant, etc. shall file a request for a retrial, not against a summary order which has lost its effect. Nevertheless, in a case where the defendant, etc. filed a request for a retrial against a summary order, the court needs to examine the arguments stated in the reasons for the request for retrial in addition to the indication of the subject of the request for retrial, and examine and determine what the subject of the request for retrial should be considered in consideration of the intention of the defendant, etc. requesting a retrial. However, since the court determines that the subject of a request for retrial is the subject of a summary order that cannot be changed due to that retrial.

Articles 420 and 456 of the Criminal Procedure Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Defendant Limited Partnership Company

Prosecutor

Chuncheon District Court Decision 2010No514 decided July 7, 2011

The appeal is dismissed.

The grounds of appeal are examined.

1. The main text of Article 420 of the Criminal Procedure Act provides that a request for a retrial may be made for the benefit of a person who has been pronounced guilty in a final judgment, and Article 456 of the same Act provides that a summary order shall lose its effect when a judgment is rendered upon a request for formal trial. According to each of the above provisions, in a case where a request for formal trial is made against the summary order and a judgment of conviction has become final and conclusive in the subsequent formal trial procedure, the defendant, etc. who claims that there exists a ground for retrial shall not be a summary order which loses its effect, but a request for

Nevertheless, in a case where the defendant et al. filed a request for a retrial against a summary order, the court needs to examine the arguments stated in the reasons for the request for a retrial in addition to the indication of the request for a retrial, and examine and determine what is the subject of the request for a retrial in consideration of the intention of the defendant et al. who requested a retrial. However, in a case where, as a result of a trial by the court, the subject of the request for a retrial is deemed a summary order, and the decision becomes final and conclusive because both the prosecutor and the defendant were not dissatisfied with it, the subject of the commencement of retrial is final and conclusive, and the subject of the request for a retrial is determined as a summary order, and the court which proceeds from the commencement of retrial pursuant to the decision for a retrial shall not change the subject of the request for a retrial into a final and conclusive judgment of conviction. In this case, the commencement order for a retrial is subject to a summary order already invalidated and thus, the court which proceeds from the retrial according to the decision for a retrial cannot hold any trial (see, e.g., Supreme Court Decision 96Do2153)

2. According to the records, the Defendant was notified of a summary order of KRW 1.5 million (hereinafter “instant summary order”) with the Gangwon Branch Branch of the Chuncheon District Court on October 14, 2008, and requested a formal trial on January 13, 2009, and was convicted of a fine of KRW 1.5 million (hereinafter “instant summary order”) on April 22, 2009, and the judgment became final and conclusive on April 30, 2009. On July 23, 2010, the Defendant requested a retrial on the instant summary order under the above court No. 2010,000,000,000 won (hereinafter “instant summary order”). On September 2, 2010, the above court rendered a new trial order on September 2, 2010.

The court below ordered the judgment of the court of first instance ex officio to reverse the judgment of the court of first instance on the ground that even if the above court rendered a decision to commence a new trial on the summary order of this case which has already become invalid due to a conviction upon a request for a formal trial, it is unlawful for the court of first instance to deem the first instance to be subject to a trial differently, and that it is not permitted to revoke the decision to commence a new trial of this case which has already become final and conclusive, and it is not allowed to further examine and determine the case or to return it to the court of first instance to make a new trial and make a decision thereon.

In light of the above legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the validity of the decision to commence a retrial and the subject of a trial.

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

Justices Kim Shin (Presiding Justice)