Whether res judicata of the final and conclusive judgment on a crime of violation of Article 5-4 (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes, which is the provision on the aggravated punishment for demotion and theft, affects other larceny crimes committed before the judgment becomes final and conclusive (negative)

The purport of Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes is that punishment shall be imposed in accordance with the statutory punishment prescribed in paragraphs (1) through (4) of the same Article even in cases where habituality is not recognized in cases where the criminal records and the requirements for aggravation of repeated crimes are met. As such, the case of being prosecuted and punished under the above provisions cannot be deemed as a case of being prosecuted for habitual crimes and punished. Thus, even if the defendant is recognized as a habit of larceny, the res judicata effect of the final judgment punished under the above provisions does not extend to other larceny crimes committed before the judgment becomes final and conclusive.

Article 5-4 (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 37, 329, and 332 of the Criminal Act, Article 326 subparagraph 1 of the Criminal Procedure Act

Supreme Court Decision 85Do699, 85Do94 Decided May 28, 1985 (Gong1985, 973) Supreme Court Decision 89Do226, 89Do198 Decided January 23, 1990 (Gong1990, 587) Supreme Court Decision 94Do1391 Decided September 27, 1994 (Gong1994Ha, 2915)

Defendant

Prosecutor

Changwon District Court Decision 2008No285 decided July 17, 2008

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

We examine the grounds of appeal.

1. In a case where a judgment of conviction has become final and conclusive for a part of several of the crimes which are in a comprehensive crime as a habitual offender, if a new indictment was instituted for the remaining crimes committed before the judgment of facts in the final judgment was rendered, that new indictment constitutes the case in which the final judgment was rendered, and thus, a judgment of acquittal shall be rendered (Article 326 subparagraph 1 of the Criminal Procedure Act). However, in order to apply such a legal doctrine, the relevant criminal defendant must be prosecuted and placed in the final judgment before and after the final judgment. In a case where he/she is committed as an offense which is not a habitual offender, then he/she shall only be prosecuted after a domestic case or after a new indictment is committed, or after considering the facts which have become final and conclusive in the judgment before and after the final judgment (see, e.g., Article 326 subparagraph 1 of the Criminal Procedure Act), and it shall not be deemed that the remaining crimes committed before the judgment of the final and conclusive judgment has become final and conclusive in light of the basic principle of res judicata effect of the crime and name of the final judgment.

In light of the above legal principles, Article 5-4 (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes purports that punishment shall be imposed in accordance with the statutory punishment prescribed in paragraphs (1) through (4) for habitual offenders even in a case where habituality is not recognized if the requirements for criminal records and aggravation of repeated crimes are met (see, e.g., Supreme Court Decision 94Do1391, Sept. 27, 1994). Thus, a case prosecuted and punished under the above provision cannot be deemed to be a case where a habitual offender is prosecuted and punished. Thus, even if a criminal defendant is recognized as a commission of larceny, it is reasonable to view that the res judicata effect of the final judgment punished under the above provision does not extend to other larceny crimes committed before the judgment becomes final and conclusive.

Nevertheless, on the grounds as indicated in its reasoning, the court below maintained the first instance judgment that acquitted the charges of this part on the grounds that res judicata effect of the final and conclusive judgment extends to a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes. In so doing, the court below erred by misapprehending the legal principles on habitual offenders or res judicata, which affected the conclusion of the judgment, and the allegation in the grounds of appeal

2. The prosecutor filed an appeal as to the guilty portion of the judgment below, but did not submit the grounds of appeal as to this part.

3. Therefore, the judgment of the court below should be reversed. This part of the judgment of the court below shall be reversed, and this part shall be concurrent crimes with the judgment of the court below under the former part of Article 37 of the Criminal Act, and since the prosecutor appeals the whole judgment

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

Justices Ahn Dai-hee (Presiding Justice)