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The appeal is dismissed.
Reasons
The grounds of appeal are examined.
1. In the Criminal Procedure Act, a request for reopening of procedure may be made against a final and conclusive judgment of conviction or against an appeal or a judgment of dismissal by intention for the benefit of the person against whom the final and conclusive judgment
Article 420 and Article 421(1) of the Act only allows the so-called "the benefit of the defendant, which is a benefit to the defendant (Article 420 and Article 421(1)), and Article 439 of the Act, which reflects the principle of review of such benefit, shall not be sentenced to a penalty heavier than
“The principle that no sentence heavier than the original judgment is to be imposed,” which does not mean only the principle that no sentence heavier than the original judgment is to be imposed, but also the purport that a retrial should be conducted to realize substantive justice within the extent that it does not undermine the legal stability of the defendant.
However, a new trial procedure is not a subsequent procedure of the previous litigation procedure examining the propriety of the original judgment, but a completely new litigation procedure to judge the case itself from the beginning and the original judgment becomes final and conclusive, the original judgment shall lose its effect naturally
If there is a serious defect in the final and conclusive judgment, this is derived from the nature of the review to withdraw the legal stability maintained by the final and conclusive judgment in order to realize the specific justice and to re-examine the case itself.
Therefore, as a new judgment becomes final and conclusive, the effect of the original judgment or its incidental disposition loses its legal effect and the effect of the original judgment itself is natural in light of the essence of the retrial. Therefore, even if the original judgment loses its effect and the Defendant puts any disadvantage on the part of the Defendant, it does not constitute a violation of the legal status of the Defendant to be protected in the retrial.
Therefore, even if a new sentence is rendered after the expiration of the grace period without the invalidation or cancellation of the suspended sentence sentenced by the original judgment, the grace period shall be the same.