Whether a request for retrial against a judgment remanded is lawful (negative)

Articles 420, 421(1), and 433 of the Criminal Procedure Act

Supreme Court Decision 200Jado2 Delivered on January 5, 2001

Defendant

Defendant

Supreme Court Decision 2004Do1655 Delivered on September 29, 2005

The request for retrial is dismissed.

Reopening of procedure in a criminal trial is allowed only for a final judgment dismissing an appeal or final appeal against a final judgment of conviction and a final judgment dismissing a final judgment of conviction pursuant to Articles 420 and 421(1) of the Criminal Procedure Act. Since the judgment of remand cannot be deemed a final judgment of conviction, a request for retrial against a judgment of remand is unlawful (see Supreme Court Decision 200Do20 delivered on January 5, 2001).

The judgment subject to a retrial in this case is a judgment that reversed this part of the judgment of the court below by ex officio and remanded this part of the case to the court below and dismissed the remainder of the prosecutor's appeal on the grounds that the defendant's grounds of appeal and the prosecutor's grounds of appeal were dismissed, but the amendment of Article 39 (1) of the Criminal Act was made. The part that reversed and remanded the judgment of the court below among the judgment subject to a retrial cannot be the judgment subject to a retrial, and the part that dismissed the prosecutor's appeal is not a judgment dismissing a final appeal against a conviction.

Therefore, the request for retrial of this case is dismissed in accordance with Article 433 of the Criminal Procedure Act. It is so decided as per Disposition by the assent of all participating Justices.

Justices Son Ji-yol (Presiding Justice)