In a case where a person for whom a final judgment of conviction was rendered for habitual crimes (a prior crime) committed a crime (a subsequent crime) by the same damp wall thereafter, and where a new trial has commenced for the final judgment of conviction, whether res judicata effect of a new judgment on a subsequent offense by the same damp wall would affect the subsequent offense if the subsequent offense by the same damp wall was committed before the pronouncement of a new judgment on the prior offense (negative)

Articles 37 and 39(1) of the Criminal Act; Article 326 subparag. 1 of the Criminal Procedure Act

Supreme Court en banc Decision 2018Do20698 Decided June 20, 2019 (Gong2019Ha, 1485) Supreme Court en banc Decision 2016Do756 Decided July 25, 2019

Defendant

Defendant and Prosecutor

Attorney Jeong Il-ho

Seoul Northern District Court Decision 2016No2484 decided April 6, 2018

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

The prosecutor's grounds of appeal are examined.

1. Where a person on whom a final judgment of conviction was rendered for habitual crimes committed an offense by the same damp, and a new trial has commenced for the final judgment of conviction (hereinafter referred to as “prior offense”), and where a subsequent offense by the same damp wall was committed prior to the pronouncement of a new judgment for the prior offense, even though the subsequent offense by the same damp wall was committed prior to the pronouncement of a new judgment for the prior offense, the res judicata effect of the new judgment for the subsequent offense does not extend to the subsequent offense. In addition, even in a case where a judgment for the subsequent offense was first declared and became final prior prior prior to the pronouncement of a new judgment for the prior offense, the res judicata effect of the judgment for the subsequent offense does not extend to the prior offense (see Supreme Court en banc Decision 2018Do20698, Jun. 20, 201

2. The record reveals the following facts.

A. On August 11, 1998, the Defendant was sentenced to two years for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes as to the crime that habitually stolen by taking the victim’s passbook, etc. from the North Branch of the Seoul District Court on May 6, 1998 (hereinafter “instant crime”), and the judgment became final and conclusive around that time (hereinafter “instant judgment subject to a retrial”).

B. On January 9, 2001, the Defendant was sentenced to imprisonment with prison labor for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes and for a two and a half years and six months, and the judgment became final on the same day.

C. The Constitutional Court, on February 26, 2015, determined that Article 329 of the Criminal Act, among Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 10210, Mar. 31, 2010), which is applicable law to the instant crime, violates the Constitution.

D. Based on the foregoing Constitutional Court’s decision of unconstitutionality, the Defendant filed a petition for a new trial on March 7, 2016 with respect to the instant judgment subject to a new trial, and the new trial proceedings were initiated in the original trial. The prosecutor modified the applicable provisions of law into Articles 332 and 329 of the Criminal Act, and the name of the crime was habitually stolen, and the lower court admitted the indictment. On April 6, 2018, the lower court acquitted the Defendant on the grounds that res judicata effect of a final judgment on the instant subsequent offense extends to the instant crime.

3. In light of the legal principles as seen earlier, even if the Defendant committed the instant subsequent offense based on the same damp wall as the instant subsequent offense, res judicata effect of a final judgment on the instant subsequent offense does not extend to the instant crime.

Nevertheless, the lower court determined that the res judicata effect of a final judgment on the instant subsequent offense extends to the instant crime. In so determining, the lower court erred by misapprehending the legal doctrine on res judicata, etc., thereby adversely affecting the conclusion of the judgment. The Prosecutor’s ground of appeal

4. Conclusion

Therefore, without further proceeding to decide on the Defendant’s grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating

Justices Kim Jae-hyung (Presiding Justice)