In a case where a person for whom a final judgment of conviction was rendered for habitual crimes committed a subsequent offense by the same damp wall, and a new trial has been commenced for the final judgment of conviction, whether res judicata effect of a new judgment on a subsequent offense by the same damp wall extends to the subsequent offense if the subsequent offense by the same damp wall was committed before the pronouncement of a new judgment on the judgment subject to new trial (negative), and whether res judicata effect of the judgment on the subsequent offense becomes final and conclusive prior to the pronouncement of a new judgment on the prior offense prior to the pronouncement of a new judgment on the judgment

Article 13(1) of the Constitution of the Republic of Korea; Article 326 subparag. 1, 420, 435, 438(1), and 439 of the Criminal Procedure Act

Supreme Court en banc Decision 2018Do20698 Decided June 20, 2019 (Gong2019Ha, 1485)

Defendant

Defendant

Attorney Noh Jeong-soo

Seoul Central District Court Decision 2015No4076 Decided December 23, 2015

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the assertion regarding res judicata

A. Where a person who has been convicted of habitual crimes committed a crime by the same damp, and a new trial has commenced for the final judgment of conviction (hereinafter referred to as “prior crime”), and even if a subsequent offense by the same damp wall was committed prior to the pronouncement of a new judgment on the judgment subject to new trial, res judicata effect of a new judgment on the subsequent offense does not extend to the subsequent offense. Furthermore, even in a case where a judgment on the subsequent offense was first declared and became final before the pronouncement of a new judgment on the judgment subject to new trial on the judgment subject to new trial, res judicata effect of the judgment on the subsequent offense does not extend to the prior offense (see Supreme Court en banc Decision 2018Do20698, Jun. 20, 2019).

B. The record reveals the following facts.

On May 9, 2013, the Defendant was sentenced to imprisonment with prison labor for one year and six months for a crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, etc., and the judgment became final and conclusive on May 17, 2013 (hereinafter “instant judgment subject to a judgment subject to a retrial”) with respect to the instant crime, which was habitually stolen (hereinafter “instant crime”), brought the victims’ bags on November 10, 201 and on March 16, 2013 at the Seoul Central District Court (hereinafter “instant judgment subject to a retrial”). The lower court, which was the procedure for a retrial, was convicted of the instant crime of which the indictment was modified for habitual larceny on December 23, 2015.

On May 15, 2015, the Defendant was sentenced to imprisonment with prison labor for habitual larceny on December 21, 2014, and on January 16, 2015, and on May 23, 2015, the judgment became final and conclusive on May 23, 2015, with respect to the criminal facts that brought the victims’ mobile phones, etc. to habitually steals (hereinafter “instant subsequent crimes”).

C. In light of the aforementioned legal principles, even if the Defendant’s crime of this case committed a crime based on the same damp wall as the subsequent offense of this case, res judicata of a final judgment on the subsequent offense of this case does not extend to the crime of this case. Since the judgment of the court below is in accordance with the above legal principles, it did not err by misapprehending the legal principles as to res judicata

2. As to the assertion of misapprehension of legal principles as to sentencing hearing and sentencing determination

According to Article 383 subparagraph 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is allowed only for cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed. Thus, in this case where a more minor sentence has been imposed on the defendant, the argument that the punishment is too unreasonable is not legitimate grounds for appeal

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Jeong-hee (Presiding Justice)