(영문) 대법원 2021.7.8. 선고 2021도2738 판결

The part of the judgment below against the public law violation shall be reversed, and that part of the case shall be remanded to the Seoul High Court.

Reasons

The grounds of appeal are examined.

In an indivisible final and conclusive judgment that found one of the concurrent crimes guilty, where it is deemed that there exist grounds for a request for retrial only for a part of the facts constituting an offense among them, a decision to commence retrial has to be made on the whole judgment. However, in light of the nature of the retrial system, which is a means of emergency relief, the effect of a decision to commence retrial on the facts constituting an offense for which no grounds for retrial exist, is included in a formal subject of a trial, the retrial court cannot reverse the conviction by re-examination on that part. However, since a new sentence should be imposed on that part, it is only possible to conduct a trial only to the extent necessary for sentencing (see, e.g., Supreme Court Decisions 201Do1239, Jul. 13, 2001; 201Do14928, Mar. 24, 2016).

According to the judgment of the court below and the records, the court below found the defendant guilty of each of the facts charged in violation of the Presidential Emergency Decree No. 9 and violation of the Public Law, which were sentenced to one year of imprisonment and one year of suspension of qualification, and found the prosecutor guilty of the above facts charged in the judgment subject to a retrial on the ground that the Presidential Emergency Decree No. 9 was unconstitutional, and the Seoul High Court rendered a decision to commence a retrial on the whole of the facts charged in the judgment subject to a retrial on the ground that the grounds that the grounds for retrial under Article 420 subparag. 5 of the Criminal Procedure Act is recognized as to the part of the facts charged in the judgment subject to a retrial among the facts charged in this case, and found the defendant not guilty on the ground that the evidence submitted by the prosecutor alone was insufficient to acknowledge the facts charged in violation of the Anti-Public Law that the defendant had benefit an anti-government organization, and found the

However, examining the reasoning of the judgment below in light of the aforementioned legal principles and records, among the facts charged as to the violation of the Emergency Decree and the violation of the Anti-Public Law, the grounds for retrial were explicitly asserted only the facts charged as to the violation of the Emergency Decree, and such grounds for retrial were recognized. However, since the entire judgment subject to retrial is an indivisible judgment, the entire judgment subject to retrial rendered a decision to commence a retrial as to the whole of the judgment subject to retrial formally, the retrial court cannot reverse the conviction by re-examination on the part of the violation of the anti-public law, which did not claim the grounds for retrial. However, the retrial court can only deliberate only to the extent necessary for sentencing.

Nevertheless, the lower court reversed the conviction of the judgment subject to a retrial and rendered a not guilty verdict on the part of violation of the anti-public law. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of a retrial, thereby adversely affecting the conclusion of the judgment. The Prosecutor’s ground of appeal assigning this error is with merit.

Therefore, the part of the judgment below regarding the violation of the antipublic law shall be reversed and this part of the case shall be reviewed and judged again

The case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.