In a case where only the defendant appealed on the conviction part of the appellate judgment prior to remanding the case among the comprehensive crimes, but the prosecutor did not make an appeal on the acquittal part, whether the appellate court which reversed and remanded the case can render a new trial and determination on the acquittal part on the ground that the appellate court's judgment on the conviction was erroneous (negative)

In a case where the appellate court prior to the remand found only a part of the comprehensive offense was found guilty, and if the prosecutor did not make a final appeal with respect to the acquittal portion, the portion of the acquittal portion is also subject to the final appeal based on the principle of no appeal by the principle of no appeal by the court of final appeal. However, the part is already excluded from the object of attack and defense between the parties, and thus, it cannot be determined by the court of final appeal even by the court of final appeal. Accordingly, the appellate court which reversed and remanded the case on the ground that the appellate court's judgment of the aforementioned conviction was erroneous, cannot render a new trial and determination of the

Article 364 of the Criminal Procedure Act, Article 37 of the Criminal Act

Supreme Court Decision 74Do1301 decided Oct. 8, 1974 (Gong1974, 8066) 76Do2962 decided Nov. 9, 1976 (Gong1976, 9470) 90Do1033 decided Jul. 24, 1990 (Gong190, 1830)

Defendant

Defendant

Attorney Shin Chang-dong

Supreme Court Decision 90Do1198 Delivered on July 24, 1990

Gwangju High Court Decision 90No545 delivered on November 15, 1990

The judgment below is reversed and the case is remanded to the Gwangju High Court.

Before determining the grounds of appeal, this paper examined ex officio.

According to the records, the prosecutor prosecuted each thief on February 3, 201 of the defendant's indictment, and the judgment of the court below prior to remand sentenced the conviction on the thief on the thief on the thief on the thief on the thief on the thief on the thief on the thief on the thief on the thief on the thief on the thief on the thief on the thief on the thief on the thief on the thief on the thief on the thief on the thief on the thief on the thief on the thief on the thief on

However, if the court below's judgment prior to the remand found only a part of the comprehensive offense was found guilty, only the defendant appealed against the conviction but the prosecutor did not appeal against the acquittal portion, the portion of the acquittal portion may also be remanded to the court of final appeal based on the principle of no appeal by the principle of no appeal unless the prosecutor appealed from the object of attack and defense between the parties, and thus, it cannot be determined by the court of final appeal. Accordingly, the court below reversed and remanded the case from the court of final appeal on the ground that the judgment of the court below on the conviction portion was erroneous, and the judgment of the court below on the ground that the judgment of the court below on the conviction portion

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the scope of adjudication, and it is clear that this affected the conclusion of the judgment. Thus, without examining the grounds of appeal by the defendant and defense counsel, the judgment of the court below is reversed and the case is remanded to the court below

Justices Lee Jae-sung (Presiding Justice)