In a case where the first instance judgment that rendered a partial conviction or partial innocence among the facts charged related to concurrent crimes under the former part of Article 37 of the Criminal Act stated the grounds for appeal only with respect to the portion not guilty while the prosecutor appealed, and the scope of appeal is indicated as “total”, whether the appellate court should render a sentence as to the whole facts charged (affirmative)

With respect to the judgment of the court of first instance which found the guilty of part of the facts charged in relation to concurrent crimes under the former part of Article 37 of the Criminal Act and acquitted the rest of the facts charged, if only the prosecutor appealed and did not state the grounds for appeal concerning the acquitted part, but the scope of appeal was indicated “wholly”, in such a case, the entire judgment of the court of first instance is reversed, and the judgment of the court of first instance is subject to the judgment. Thus, when the court below acknowledges the acquittal part of the judgment of the court of first instance, it is reversed

Article 37 of the Criminal Act, Articles 342 and 364 of the Criminal Procedure Act

Supreme Court Decision 2010Do17779 Decided March 10, 2011

Defendant

Prosecutor

Seoul Central District Court Decision 2013No3640 Decided December 18, 2013

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

We examine the grounds of appeal.

1. As to the judgment of the court of first instance which found a guilty of part of the facts charged in relation to concurrent crimes under the former part of Article 37 of the Criminal Act and acquitted the remainder, if only the prosecutor did not state the grounds for appeal concerning the part of the acquittal while appealed and did not state the grounds for appeal concerning the part of the acquittal, but the scope of appeal was indicated as “total” in such a case, the whole judgment of the court of first instance is reversed and subject to the judgment of the court of first instance. Thus, when the court below found the acquittal portion of the judgment of the court of first instance guilty, it is necessary to reverse the entire judgment of the court of first instance and sentence all the facts charged in relation to concurrent crimes (see, e.g.

2. According to the records, the first instance court convicted the victim non-indicted 1 among the facts charged in the instant case in which the concurrent crime under the former part of Article 37 of the Criminal Act was committed, and acquitted the victim non-indicted 1, and found the victim non-indicted 2 guilty of embezzlement and fraud. ② Only the prosecutor appealeds the first instance judgment against the judgment of the court of first instance, and stated the scope of appeal in the petition of appeal "total" in the petition of appeal. ③ The lower court determined the non-indicted 2 of the aforementioned non-indicted 2 of the non-indicted 1 in accordance with the amendment of the indictment, and determined the guilty verdict of the non-guilty verdict of the first instance court as to the fraud.

Examining the above facts in light of the above legal principles, the whole judgment of the court of first instance, including embezzlement against the victim non-indicted 1 who was convicted at the court of first instance, is subject to the judgment of the court below. As long as the court below found the defendant guilty of concealing property against the victim non-indicted 2, the court below should have reversed all the part of the judgment of the court of first instance excluding the fraud against the victim non-indicted 2, and sentenced one punishment for embezzlement and the crime of concealing property in the concurrent relationship under the former part of Article 37 of the Criminal Act (Records, according to the records, the court below should have tried from the prosecutor of the court of first instance on the second trial that "the purport of the court of first instance is to prepare for the case where the non-guilty part is found guilty, not for the allegation of unfair sentencing as to the guilty part, but for the case where the non-indicted 1 is found guilty, after consultation with the public prosecutor of the court of first instance." However, the method of withdrawal of appeal should be written in principle, even if it is exceptionally recorded in the court record (Article 352).

Nevertheless, the court below reversed only the embezzlement part against the victim non-indicted 2 in the judgment of the court of first instance and sentenced a separate punishment therefor. This is erroneous in the misunderstanding of legal principles as to the object to be tried in the appellate court and the withdrawal of appeal.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)