Whether the final decision of the court of final appeal maintains the final decision in cases where a new argument is added or the indictment is changed due to the amendment of the applicable law with regard to the part rejected as a ground of final appeal on the grounds that the assertion in the grounds of final appeal is groundless (affirmative)

The part rejected by the court of final appeal on the ground that the argument in the grounds of final appeal is groundless at the same time as the ruling becomes final and conclusive, and the defendant can no longer contest against this part, and the court remanded can no longer make a decision contrary thereto. Thus, the defendant cannot make a claim in this part as the grounds of final appeal. The same applies to the case where a new argument is added with regard to the part of the final and conclusive judgment, and the same applies to the case where the indictment is amended due to the amendment of the applicable law, and the case where the bill of indictment is amended, the court to which the case was remanded should be tried by considering the new crime, applicable provisions and statutory penalty, and the defendant cannot contest the part

Article 8 of the Court Organization Act, Article 397 of the Criminal Procedure Act

Supreme Court Decision 2001Do265 Decided April 10, 2001 (Gong2001Sang, 1175) Supreme Court Decision 2002Do3062 Decided February 28, 2003, Supreme Court Decision 2005Do7582 Decided February 9, 2006, Supreme Court Decision 2006Do920 Decided May 11, 2006 (Gong2006Sang, 1097)

Defendant

Defendant

Law Firm Barun, Attorney Kim Yong-il

Supreme Court Decision 2005Do5822 Delivered on October 28, 2005

Seoul High Court Decision 2005No2435 delivered on March 14, 2006

The appeal is dismissed. 75 days out of detention days after the appeal shall be included in the original sentence.

1. According to the records, the court below found the defendant guilty of receiving money and valuables or property gains equivalent to KRW 298 million in total from the non-indicted 1 among the facts charged against the defendant, and received money and valuables or property gains equivalent to KRW 21,165,565 in total from the non-indicted 2, and received money and valuables equivalent to KRW 15 million in total from the non-indicted 3, while the court below found the defendant guilty of not guilty of receiving KRW 70 million in the lower order of March 1, 2001, KRW 30 million in total and KRW 40 million in stocks of the non-indicted 1, and the non-indicted 1, the non-indicted 1, and the non-indicted 30,000 won in the second order of April of the same year. The court below rejected the prosecutor's appeal on the part of the non-indicted 1's conviction and the prosecutor's grounds of appeal on the remanded and the non-indicted 30,000 won in whole after remanding the judgment of the judgment below.

2. The part rejected by the court of final appeal on the ground that the argument in the grounds of final appeal is groundless at the same time as the adjudication is rendered, and the defendant can no longer contest against this part, and the court remanded can no longer make a decision contrary thereto (see Supreme Court Decision 2002Do3062, Feb. 28, 2003, etc.). The same applies to the case where a new argument is added to the part in which the final decision was made (see Supreme Court Decision 2005Do7582, Feb. 9, 2006, etc.). The same applies to the case where the bill of indictment is modified due to the amendment of the applicable law, the remanded court should decide by considering the new crime, applicable provisions and statutory penalty, and regardless of this, the defendant cannot contest the part in which the final decision was already made.

3. The defendant's ground of appeal concerning the guilty portion (the violation of the part concerning additional indictment, the incomplete hearing on the assessment of unlisted stocks, and the misapprehension of legal principles) added a new argument about the consent of the administrative authority of the United States of America, and there was any change in indictment due to the amendment of the applicable law to the facts charged, the appeal on the guilty portion was rejected by the judgment of remand, and the final judgment became final and conclusive (the reversal of the conviction portion is nothing more than that of the court below prior to the remand because it was not possible to reverse only the part of the conviction portion due to the failure to impose confiscation or additional collection). Thus, it cannot be viewed as a legitimate ground of appeal. The court below's decision is just, and the judgment of the court below is erroneous in the misapprehension of legal principles as to the judgment of the court below's omission, the incomplete hearing, or the extradition treaty Article 15. The ground of appeal contains errors in the misapprehension of legal principles as to the determination of facts with respect to the consent of the administrative authority of the United States of America, but its assertion itself is inconsistent with the validity of the judgment.

4. Therefore, the appeal shall be dismissed, and part of the detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Si-hwan (Presiding Justice)