Where a Justice constituting a Gun Council after the reversal and return by the Supreme Court is the same as a member before the remand (affirmative)

In criminal proceedings, once a judgment has been reversed and remanded by the appellate court after pleading, the judgment shall be held after pleading, except as otherwise provided in Article 420(3) of the Military Court Act, even though the judge constituting the military court council after remanding the case is the same as the member before the remanding the case, the judgment shall be rendered after pleading, unless there is any special provision like Article 420(3) of the Military Court Act.

Articles 420(3), 431, and 71(1) of the Law Meeting Act

Defendant

Defendant

Attorney Kim Nam-jin

85 High Military Court Decision 85 High Military Uniform 2 delivered on June 14, 1985

The judgment of the court below is reversed, and the case is remanded to the High Military Court of Korea.

Judgment ex officio

1. On this case, a party member reversed and remanded the judgment of the court below on April 9, 1985 on the ground that the judgment of the court below before remanded the case was erroneous in the misapprehension of the trial proceedings and the composition of the judgment court. According to the records, according to the court records of June 14, 1985 after the party member's remanded the case, the court shall be revised without the presence of defense counsel, and the court shall be sentenced without any pleadings as to the case of the military prosecutor and defendant. It is clear that the judgment of the court below is to be pronounced after the party member's remanded the case. And according to the reasoning of the judgment of the court below, it is clearly stated that the judgment is to be

In criminal procedure, pleading refers to the process of attack and defense by the parties in relation to the facts constituting an offense against which a public prosecution has been instituted in the presence of the court of judgment, and even though the court of original judgment cannot find out a trace of pleading in addition to the examination of recognition of the defendant in the court of original judgment after remand, the court of original judgment has gone through pleading, and it cannot be said

Except as otherwise expressly provided for in Articles 420(3) and 71(1) of the Military Court Act, the court below’s decision that reversed the first instance judgment and rendered a self-determination without any pleadings in this case that does not fall under the above special provisions shall not be deemed to have violated the above Article 431 and Article 71(1) of the same Act in making a judgment at the High Military Court’s Law Meeting. Once a judgment was rendered through pleadings in criminal proceedings, the court below’s decision shall not be deemed to have been concluded. In a case where the judgment was reversed and remanded at the appellate court, the court below should render a judgment again after the pleading, unless the above exceptional provisions are provided, even if the Justice constituting the Military Court’s Law Meeting after remanding the case is identical to the member before remanding the case (Article 440(1) and Article 430(1) of the Military Court’s Law Meeting Act). In other words, although the procedure of the appellate court after the reversal and return from the court of final appeal is not different from the procedure of final appeal (Article 4430(c).

If the judgment of the court below is identical to the judge constituting the Gun legal council after the remand of the case, so if the pleading before the remand of the case is made to the purport that it maintains its identity even after the remand, it cannot be said that there is a misunderstanding of legal principles as to the trial procedures

In addition, since the above illegality has influenced the outcome of the trial, it is clear that the judgment of the court below is reversed and remanded, it is so decided as per Disposition with the assent of all participating judges.

Justices Lee Chang-chul (Presiding Justice)