The case reversing and reversing the judgment on the ground that there was an error in violation of Article 364(4) of the Criminal Procedure Act, in the case where the appellate court ruled that the prosecutor's appeal was groundless on the grounds that part of the facts charged against the defendant, which was pronounced not guilty by the first instance court, and only the prosecutor appealeds the appellate court judgment,

The case reversing the judgment of the appellate court that only the prosecutor appealed on the part of the facts charged against the defendant, after having been acquitted by the first instance court, and only the prosecutor appealeds on the grounds that the prosecutor's appeal is groundless, but the appellate court did not declare the dismissal of appeal in the order, on the ground that there was an error of violation of Article 364 (

Articles 364(4) and 396 of the Criminal Procedure Act

Supreme Court Decision 74Do619 Decided July 22, 1975 (Gong1975, 8664) Supreme Court Decision 81Do1544 Decided December 8, 1981 (Gong1982, 187)

Defendant

Prosecutor

Attorney Lee Dong-hoon

Seoul District Court Decision 2000No1439 delivered on April 26, 2000

The part of the judgment below against the Attorney-at-Law Act is reversed, and the prosecutor's appeal against this part is dismissed.

1. We examine ex officio the grounds of appeal prior to determination.

Article 364(4) of the Criminal Procedure Act provides that an appellate court shall dismiss an appeal by judgment when the appellate court recognizes that the appeal is groundless. According to the records, the first instance court rendered a verdict of innocence as to the violation of the Attorney-at-Law Act against the defendant among the facts charged in the instant case, and the prosecutor appealeds the court below on the grounds of which the prosecutor’s appeal is groundless, while the court below rendered a judgment that the prosecutor’s appeal was groundless, it can be known that the appellate court did not dismiss the appeal. Thus, the court below erred by violating Article 364(4) of the Criminal Procedure Act (see, e.g., Supreme Court Decisions 74Do619, Jul. 22, 1975; 81Do154

Therefore, the judgment of the court below shall not be exempted from reversal because it cannot be maintained in this respect, and it is recognized that this case is sufficient to render a judgment based on the records of trial and the evidence examined up to the court below, so this court shall render a judgment directly in accordance with Article 396 of the

2. The summary of the facts charged against the defendant in violation of the Attorney-at-Law Act among the facts charged in this case against the defendant is that the defendant received 3 million won from the non-indicted on November 1997 at the underground space of Samsung Fire Building located in the Seoul District Public Prosecutor's Office at the request of the head of the full-time community who works for the public prosecutor's office in relation to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, which he was investigated at the Seoul Public Prosecutor's Office. In light of the records, the evidence corresponding to the facts charged by the first public prosecutor's office is rejected in light of the records, and there is no other evidence supporting the facts charged, and there is no error of mistake of facts.

3. Therefore, the prosecutor's appeal is dismissed on the ground that it is without merit, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-woo (Presiding Justice)