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The judgment below
The part against the defendant shall be reversed.
Defendant shall be punished by a fine of KRW 1,000,000.
The defendant above.
Reasons
1. In a new trial proceeding, the court cannot reverse the conviction by re-examination on the part of the facts constituting a crime for which there is no ground for retrial. However, in a final and conclusive judgment which found several concurrent crimes guilty, where it is recognized that there is a ground for request for retrial only for some of the facts constituting a crime among them, the decision to commence a new trial has to be made on the whole of the judgment. However, inasmuch as the effect of the decision to commence a new trial as to the facts constituting a crime for which there is no ground for retrial under the nature of the system of a new trial, which is an extraordinary remedy, is included in the scope of a trial formally, the new trial court cannot reverse the conviction by re-examination on that part. However, since the new sentencing should be conducted on that part, only to the extent necessary for sentencing is possible.
(1) As to each part of the judgment subject to a retrial, there is no ground for retrial, and each part of the judgment subject to a retrial ought to be deliberated only to the extent necessary for sentencing.
2. The decision of the court below (one year of imprisonment) is too unreasonable in its summary of the grounds for appeal.
3. Prior to the judgment on the grounds for appeal by the defendant, the Constitutional Court rendered ex officio a decision of unconstitutionality as to Article 241(1) of the Criminal Act, which is a applicable provision to the facts charged against the defendant, among the facts charged against the defendant, in cases where the law or legal provision on punishment becomes retroactively null and void due to the decision of unconstitutionality, the defendant's case which was prosecuted by applying the pertinent law, shall be deemed not to constitute a crime.
(See Supreme Court Decision 2001Do3495 Decided March 10, 2005, etc.).