In a case where the defendant appealed against the judgment of the court of first instance, which rejected an application for compensation while declaring the defendant guilty, and the applicant for compensation filed an application for compensation again at the court of first instance, and the court of original judgment found the defendant guilty, the case holding that the court below's rejection of application for compensation at the court of first instance was unlawful without dismissing the above application for compensation, on the ground that it was impossible for the court of first instance to file

Article 347(1) of the Criminal Act; Articles 25(1), 32(1) and (3) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings

Defendant

Defendant

Attorney Park Ho-ho et al.

Applicant, Ltd.

Incheon District Court Decision 2013No1904 decided November 7, 2013 and 2013 early 1968 compensation order

The part of the judgment below regarding the compensation order is reversed, and the application for compensation of this case is dismissed. The remaining grounds of appeal are dismissed.

The grounds of appeal are examined.

1. Defendant case;

In light of the evidence duly admitted by the court below, the court below is just in finding the defendant guilty of the facts charged in this case on the grounds as stated in its reasoning, and contrary to what is alleged in the grounds of appeal, there were no errors of exceeding the bounds of the principle of free evaluation of evidence in violation of logical

In addition, according to Article 383 subparag. 4 of the Criminal Procedure Act, an appeal on the ground of unfair sentencing may be filed only when the court below rendered a judgment of death penalty or imprisonment with or without prison labor for an indefinite term or for not less than ten years. Therefore, in this case where the defendant was sentenced to a more minor punishment, the argument that the amount of punishment is unfair

2. As to the compensation order

According to the records, the applicant for compensation (hereinafter referred to as the "applicant") filed an application for compensation in the first instance court, and the first instance court found the defendant guilty, and dismissed the above application for compensation while sentenced to one year and three months of imprisonment with prison labor, and the defendant appealed against the first instance court, and the applicant filed an appeal in the first instance court. The court below reversed the first instance court judgment ex officio on the ground of changes in indictment, and the court below found the defendant guilty of the charges against the defendant and sentenced the defendant to a compensation order for the amount of KRW 171,750,130, which is obtained through deception, while sentenced to one year and three months.

However, at the court of first instance, the applicant cannot raise an objection against the judgment dismissing an application for compensation or accepting a part thereof, and cannot file the same application for compensation again (Article 32(3) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings). Since the applicant’s application for compensation was dismissed in the court of first instance, the applicant cannot file the same application for compensation again, and the court of original instance should have dismissed the application for compensation. Nevertheless, the court of original instance has erred by misapprehending the legal principles on the order for compensation, which affected the conclusion of the judgment

3. Conclusion

Of the judgment of the court below, the part of the compensation order is reversed. Since this part is sufficient to be self-readable by the Supreme Court, it is dismissed pursuant to Article 32 (1) and (3) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings. The remaining appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Lee Sang-hoon (Presiding Justice)