Where a final appeal was filed only for a part of a comprehensive one crime, the object of the final appeal

In a case where only a part of the facts charged in relation to a comprehensive one crime is found guilty, and the remainder is pronounced not guilty, and the prosecutor appeals against the part of the conviction, and the defendant does not appeal against the part of the conviction, unlike the case of concurrent crimes in accordance with the principle of no prosecution, only a part of the comprehensive one crime cannot be appealed. Thus, the part which was found guilty in the court below, which was not appealed by the prosecutor's appeal against the part of the acquittal, shall also be considered to

Article 384 of the Criminal Procedure Act

Supreme Court Decision 80Do384 Delivered on December 9, 1980, 80Do2847 Delivered on March 23, 1982

Defendant 1 and one other

Defendant 1 and Prosecutor

Attorney Kim Jin-soo

Seoul Criminal Court Decision 85No1888 delivered on July 23, 1985

The judgment below is reversed in its entirety, and the case is remanded to the Panel Division of the Seoul Criminal Court.

1. First, we examine Defendant 1’s grounds of appeal (the supplementary appellate brief was submitted after the expiration of the period for submitting the appellate brief, to the extent that it supplements the above grounds of appeal).

According to the reasoning of the judgment below, among the facts charged in this case against Defendant 1, the same defendant among the facts charged in this case from February 1979 to April 1984, the court below collected KRW 1,200,000 from the non-indicted 1 to the non-indicted 40,000, and collected KRW 1,280,000 from the non-indicted 97 to the non-indicted 97,000, or collected KRW 1,280,000 from the non-indicted 4,00 to the non-indicted 97, and collected KRW 1,20,590,000 from the non-indicted 1 to the non-indicted 4,00 to the non-indicted 97, and collected KRW 1,20,000 from the non-indicted 1,590,000 to the non-indicted 4,000 to the above promotion committee's funds for business use, and collected KRW 1,390,74,000,200.

However, according to the above facts of embezzlement of 40 to 4549, especially 456, the fixed number of 10 to 456, each of the above defendants' 20-1 receipts (450, 451) for the preparation of 450, 451, and testimony at the court below (4535) for the first instance court and the witness of the court below (4724), the above 40-6, 10-6, 200-6, 30-6, 40-6, 40-6, 40-6, 40-6, 40-6, 10-7, 40-7, 40-7, 100-7, 40-7, 30-7, 1979, 40-7, 40-7, 197, 20-7, 305, 194

2. We examine the grounds of appeal by the following prosecutor.

According to the reasoning of the judgment below, among the facts charged in this case against the defendants, the defendants embezzled cement proceeds of KRW 5,400,00 which were jointly collected by the residents from the residents. The court below found the defendants not guilty on the ground that there was no evidence to acknowledge that the above amount was embezzled by the defendants, since the above amount was supplied cement to the non-indicted Kim Jin at the above promotion committee, but did not receive the above amount. The copy of the defendants' preparation consistent with the facts charged that the defendants embezzled the above amount is not arbitrarily prepared by the defendants, but is a document prepared under the suppression of reprimand that had been reprimandd by the majority of residents, and since the above statement in the above white machine is hearsay evidence or abstract statement, each of the above evidences cannot be used as evidence of guilt against the above facts charged, and there was no other evidence to prove the facts charged in this part.

However, the court below did not recognize that the defendants did not receive 5,400,000 won of cement supplied to the above Kim Jin, even in accordance with the statement (1052 through 1057, especially 1057) as admitted by the court below, and stated that the defendant 2's personal account statement (4204) stated "laverging" and that the money to be received from the above Kim Jin was received different from the above Kim Jin, and the above Kim Jin's testimony (1946 to 1950, 194) was no more than 13,000,00,000 won in relation to the above improvement project and there was no error in the law of 300,000 won in finding that the above defendants' personal account statement (1051), 30,000,000 won was no more than 50,000 won since the above defendants' personal account statement (4204, 2934, 2931, 4704).

3. Furthermore, according to the judgment of the court below and the records, the court below found Defendant 2 guilty only on the part of the facts charged in this case which is a comprehensive one offense against the defendant, and judged the remaining facts not guilty on the ground that there is no evidence of the crime. The prosecutor appealed against the acquittal portion, and Defendant 2 did not appeal the part of the comprehensive one offense, unlike the concurrent offense under the principle of no prosecution, since only the prosecutor is dissatisfied with the judgment of the court below, and Defendant 2 did not appeal the part of the judgment of the court below, and even if Defendant 2 did not appeal the same, the part which was found guilty in the court below against the defendant was transferred to the court of final appeal and tried (see Supreme Court Decisions 80Do384, Dec. 9, 1980; 80Do2847, Mar. 23, 1982; 20Do2947, Mar. 23, 1982). As seen earlier, the judgment of the court below is reversed in its entirety and it is erroneous.

4. Therefore, without any need to determine other grounds of appeal, the part of the judgment of the court below as to Defendant 1, the entire acquittal part, and the part of the conviction part as to Defendant 2, as well as the part of the acquittal part as to Defendant 2, must be reversed, and the judgment of the court below is reversed and the case is remanded to the court below.

Justices Lee Jong-soo (Presiding Justice)