Defendant Limited Partnership Company

Prosecutor

Park Bi-crison

Chuncheon District Court Decision 2010Ma593 Decided December 14, 2010

The judgment of the court below is reversed.

We examine ex officio.

1. Basic facts

According to the records, the following facts are recognized.

A. In the case of violation of the Road Act on October 14, 2008, the Defendant was convicted of a fine not exceeding 1.5 million won in the case of violation of the Road Act (hereinafter “instant formal trial”), and the judgment became final and conclusive on April 30, 2009, upon receiving a summary order of KRW 1.5 million (hereinafter “instant summary order”) under Article 86 and Article 83(1)4 of the Road Act, with respect to the facts charged that the Defendant’s employee refused to comply with a road management authority’s request for measurement of loading quantity in relation to the Defendant’s business, the Defendant was subject to the application of Article 86 and Article 83(1)4 of the Road Act.

B. On July 23, 2010, the Defendant filed a request for a new trial with the above court under approximately 2010 inventory No. 81 regarding the instant summary order, and the above court rendered a decision of commencing a new trial on the ground that Article 86 and Article 83(1) No. 83(2) of the Road Act was declared unconstitutional on September 2, 2010 by the Constitutional Court Decision 2008HunGa17, July 30, 2009.

C. On December 14, 2010, the lower court rendered a judgment of acquittal on the ground that the final judgment became final and conclusive in a formal trial procedure and the final and conclusive judgment became final and conclusive, on the grounds that the final and conclusive judgment became final and conclusive in a formal trial procedure constitutes a case where a final and conclusive judgment is rendered pursuant to Article 326 subparag. 1 of the Criminal Procedure Act.

2. Determination

Article 420 of the Criminal Procedure Act provides that a request for a retrial may be made in certain cases with regard to “final judgment of guilty”. The final judgment of conviction at this time includes a final and conclusive summary order, but does not include a judgment or a summary order which has become void due to any other reason. In addition, according to Article 456 of the Criminal Procedure Act, a summary order loses its effect when a judgment is rendered upon a request for formal trial. As seen earlier, a judgment upon a request for formal trial of this case loses its effect, and thus does not have the subject of the request for retrial of this case. Therefore, the request for retrial of this case, which is premised on the fact that the summary order of this case still exists shall not be dismissed. Furthermore, even if the new trial court was rendered with the erroneous knowledge that there exists a summary order subject to retrial as in this case, even if it did not have any subject of a trial, it cannot be said that the final and conclusive judgment does not affect the validity of the previous judgment, and even if a decision to commence a new trial against the summary order already invalidated by a request for formal trial becomes final and conclusive.

In addition, the judgment of the court below is erroneous in the misapprehension of the above legal principles.

In addition, this case also constitutes a case where a judgment by the decision on commencing a new trial cannot be rendered even as it is the party or the original judgment, and it is impossible to revoke the decision on commencing a new trial which has already become final and conclusive. Thus, the party cannot make the case deliberated and judged more or less by returning it to the original court. Ultimately, in addition to the reversal of the original judgment, no decision shall be made by the text of this decision, but the case following the decision on commencing a new trial shall be concluded

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364 (2) of the Criminal Procedure Act, since the above ground for ex officio reversal exists. It is so decided as per Disposition.

Judges Shin Tae-tae (Presiding Justice)