In a case where a decision of dismissing a public prosecution becomes final and conclusive due to the death of a defendant during the trial of final appeal as to the conviction of the appellate court, whether there exists a "final judgment of a crime of oil" which is the premise of the retrial procedure (negative), and where the defendant, etc. files a request for a retrial against the conviction of the appellate court and the

According to the main sentence of Article 420 of the Criminal Procedure Act, a retrial may be filed for the benefit of a person who has been pronounced guilty. If a final appeal is filed against a conviction of an appellate court and a trial of a final appeal is pending, and a decision dismissing a public prosecution becomes final and conclusive pursuant to Article 382 and Article 328(1)2 of the Criminal Procedure Act due to the death of the defendant, the conviction of the appellate court shall become void as a matter of course. In such a case, the final and conclusive judgment of a crime, which is the premise of the retrial procedure under the Criminal Procedure Act, shall not be deemed to exist. However, in a case where the defendant, etc. filed a request for a retrial against a conviction of an appellate court which has lost its validity due to a decision dismissing a public prosecution, the court, once it issued a decision to commence a new trial, and the decision to commence a new trial becomes final and conclusive due to the failure of both the prosecutor and the defendant, etc. to object thereof, the decision to commence a new trial becomes final and conclusive. In such case, the decision to commence a new trial cannot be changed.

Articles 328(1)2, 382, 420, and 435 of the Criminal Procedure Act

Supreme Court Decision 96Do2153 Decided July 22, 1997 (Gong1997Ha, 2590), Supreme Court Decision 201Do10626 Decided April 11, 2013 (Gong2013Sang, 901)

Defendant 1 and one other

Prosecutor

Law Firm Samil et al.

Seoul High Court Decision 2010Jono46 decided June 3, 2011

The part of the judgment of the court below as to Defendant 2 is reversed. Defendant 1’s appeal is dismissed.

The grounds of appeal are examined.

1. As to Defendant 2’s ground of appeal (Ground of appeal No. 1)

A. According to the main sentence of Article 420 of the Criminal Procedure Act, a retrial may be filed for the benefit of a person who has been pronounced guilty. If a final appeal is filed against a conviction of an appellate court and a trial in a final appeal is pending and a decision of dismissing a public prosecution becomes final and conclusive in accordance with Article 382 and Article 328(1)2 of the Criminal Procedure Act due to the death of the defendant during the period of the trial in the final appeal, the judgment of the appellate court's conviction becomes void as a matter of course. In such a case, it cannot be deemed that there exists

However, in cases where the defendant et al. filed a request for a retrial against a conviction of an appellate court which lost its validity due to a decision dismissing public prosecution, the court once rendered a decision of commencing a retrial against this decision, and when the decision of commencing a retrial becomes final and conclusive due to the failure of both the prosecutor and the defendant, etc. to appeal the decision of commencing a retrial, the subject matter for which a decision of commencing a retrial has commenced pursuant to the decision of commencing a retrial shall be determined as a conviction of the appellate court, and the court which proceeds from the procedure of a retrial pursuant to the decision of commencing a retrial shall not change the subject matter for which a new trial has commenced. However, in such cases, the decision of commencing a new trial is limited to a conviction of an appellate court that cannot commence a new trial. Thus, the court that proceeds from the procedure following the decision of commencing a new trial pursuant to the decision of commencing a

B. According to the records, Defendant 2 filed an appeal to the judgment of the first instance that sentenced life imprisonment with the Seoul High Court (Seoul High Court Decision 82No325, May 10, 1982) and filed an appeal after seven years of imprisonment with prison labor and seven years of suspension of qualification. However, Defendant 2’s decision of dismissal of prosecution was rendered on July 4, 1982 during the period of the final appeal and became final and conclusive around that time, and Defendant 2’s non-indicted son filed an appeal against the Seoul High Court Decision 82No325, Aug. 30, 2010 (hereinafter “instant appellate judgment”), which was Seoul High Court Decision 201No325, Feb. 24, 2011.

In light of the above legal principles, even if the order to commence a new trial of this case which is the object of the judgment of conviction of this case became final and conclusive, the judgment of the appellate court of this case became null and void due to the final and conclusive decision to dismiss the public prosecution on the ground of the death of the defendant, and therefore, as to defendant 2, no further judgment cannot be rendered because it is the object of the trial to proceed with the new trial procedure, but the court below deemed otherwise to be the object of the judgment and rendered a judgment of not guilty as to defendant 2. Thus, the court below cannot avoid reversal because it erred in the misapprehension of legal principles as to the validity of the decision to commence a new trial and the object of the trial. Furthermore, the court below's measures are not erroneous in matters of law by misunderstanding the legal principles as to the validity of the decision to commence a

2. As to Defendant 1’s ground of appeal (Ground of appeal No. 2)

Examining the reasoning of the judgment below in light of the records, it is justifiable for the court below to find the defendant not guilty on the grounds of its stated reasoning, such as that the evidence submitted by the prosecutor as to the facts charged in this case against the defendant 1 is inadmissible and the remaining evidence alone is insufficient to recognize the facts charged in this case. There is no error of law by misapprehending the legal principles on admissibility of evidence or by exceeding the bounds

3. Conclusion

The part of the lower judgment against Defendant 2 is reversed, and the appeal against Defendant 1 is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)