[1] The factual and legal binding force of the judgment on the reversal and return

[2] The case holding that where each witness's testimony at the court below after remanded the case to the same purport as before the remanding of the case, and his previous statement was confirmed once again, and no additional evidence examination was conducted at the court below after remand, it cannot be deemed that "the case where there was a change in the relation of evidence, which was the basis of continuous judgment, by presenting new evidence during the deliberation process after the remand,"

[1] Article 8 of the Court Organization Act provides that “The judgment of a higher court in a trial shall bind the lower court as to the case in question,” and the latter part of Article 436(2) of the Civil Procedure Act also provides that any factual and legal judgment which the court of final appeal considers as the ground for reversal shall bind the lower court. Although the Criminal Procedure Act does not provide any corresponding express provision, the court of final appeal, which is in the principle of law, may intervene in the propriety of the lower court’s judgment as to fact-finding pursuant to Article 383 or 384 of the Criminal Procedure Act, may be limited to limited interventions in the lower court’s decision as to the establishment of facts. Therefore, in the trial of the case in question, the court of final appeal, which is remanded from the court of final appeal, shall be bound by the court of final appeal so long as new evidence is presented during the trial process after remanding the case, and there is no change in the relation

[2] The case holding that where each witness's testimony at the court below after remanded the case to the same purport as before the remanding of his previous statement, and there was no additional evidence examination at the court below after remand, it cannot be deemed that "where there was a change in the relationship of evidence, which was the basis of continuous judgment, by presenting new evidence during the deliberation process after the remand," it cannot be deemed that it constitutes "where there was a change in the relationship of evidence, which was

[1] Article 8 of the Court Organization Act, Article 436 (2) of the Civil Procedure Act, Articles 383 and 384 of the Criminal Procedure Act / [2] Article 8 of the Court Organization Act, Article 436 (2) of the Civil Procedure Act, Articles 383 and 384 of the Criminal Procedure Act

[1] Supreme Court Decision 95Do830 delivered on December 10, 1996 (Gong1997Sang, 444) Supreme Court Decision 2001Do1314 Delivered on February 26, 2003 (Gong2003Sang, 946) Supreme Court Decision 2004Do340 Delivered on April 9, 2004 (Gong2004Sang, 850)

Defendant

Defendant

Supreme Court Decision 2008Do4727 Decided July 24, 2008

Daejeon District Court Decision 2008No1917 Decided November 6, 2008

The judgment of the court below is reversed, and the case is remanded to Daejeon District Court Panel Division.

We examine the grounds of appeal.

1. As to the violation of the binding force of the judgment on the reversal and return

Article 8 of the Court Organization Act provides that "The decision of a higher court in a trial shall bind the lower court with respect to the case in question," and even after the latter part of Article 436 (2) of the Civil Procedure Act provides that the court of final appeal shall bind the lower court. Although the Criminal Procedure Act does not provide any corresponding express provision, the court of final appeal, which is based on the principle of law, may intervene with the propriety of the lower court's decision on fact-finding in accordance with Article 383 or 384 of the Criminal Procedure Act. Thus, the court of final appeal, which has been remanded from the court of final appeal, has a binding force on the actual decision that has become the reason for reversal of the judgment on final appeal. Accordingly, in the trial of the case in question, the court of final appeal shall be bound so long as new evidence is presented during the trial process after remanding the case and changes in the relationship of evidence that served as the basis for speed-finding judgment occur (see Supreme Court Decisions 95Do830, Dec. 10, 1996; 204Do409).

According to the records, the summary of the facts charged in this case is that the defendant committed an indecent act against the will of the victim non-indicted 2, who is the wife of the non-indicted 1, who is a partner, using the breath of alcohol, and threatened the her husband, etc. to know it, and thereby passing about 16 million won over five times between July 5, 2002 and December 31, 2002 to his family. The defendant denied the facts charged that the defendant received the above money as investment deposit and did not have any fact. The court of first instance denied the defendant's statement of the non-indicted 1, 2, 3, 4, 5, and 6 was insufficient, and it is difficult to recognize the crime only by the statement of the witness non-indicted 7, and the defendant's statement of the non-indicted 1, 2, 3, 4, 5, and 7 alone was remanded in consideration of other various circumstances. The court below, without any further examination of evidence, dismissed the defendant's credibility during the first instance trial.

The judgment of remand is not proper to reverse the judgment of the court of first instance on the sole basis of the evidence and circumstances that the court below had been present during the trial of the court of first instance without any additional evidence examination. The measures of the court below prior to remand are in violation of the rules of evidence by violating the principle of court-oriented trials and the principle of direct trial, and thus violating the rules of evidence. In addition, the court below's finding that the court below, prior to remand, had taken money by threatening the victim even though there are reasonable doubt as stated in its judgment, did not reach a proof to the extent that there was no reasonable doubt in the criminal trial, the court below reversed the judgment of the court below prior to remand and remanded the case on the ground that there was an error of law finding the criminal facts, which found the crime to have been committed. After remand, the court below convicted the defendant by destroying the court

Examining the testimony of Nonindicted 2 and Nonindicted 4 in the lower court after remanding according to the record, it can be known that the same purport was the same as the statement before remanding, and there was no further examination of evidence in the lower court after remanding. In such a case, it cannot be said that the aforementioned legal doctrine constitutes “where there was a change in the evidence relationship, which served as the basis for prompt judgment, due to the presentation of new evidence during the deliberation process after remanding.” Therefore, the lower court’s aforementioned measures after remanding, in violation of the legal doctrine on the binding force of the judgment on the reversal and transmission.

2. As to the violation of the principle of evidence judgment

The facts charged in a criminal trial should be proven by the prosecutor, and the judge should be convicted with evidence having probative value, which leads to the conviction that the facts charged are true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is suspicion of guilt against the defendant, it shall be determined with the benefit of the defendant (see, e.g., Supreme Court Decisions 91Do1385, Aug. 13, 1991; 92Do327, Mar. 23, 1993).

In the instant case, there is still a reasonable doubt as mentioned in the judgment of remanding the circumstances based on the judgment of remanding after remanding the case, and the circumstances that the court below partially additionally paid back after remanding the case are difficult to eliminate such reasonable doubt. Nevertheless, it is erroneous in the misapprehension of the legal principle that the court below acknowledged that the defendant received money by threatening the victim after remanding the case to the extent that there is no reasonable doubt in the criminal trial.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)