2013Do14928 Violence

Network A

Defendant B

Prosecutor

C Law Firm

Attorney I, D

Seoul High Court Decision 2013Reno84 Decided November 21, 2013

March 24, 2016

The part of the judgment below regarding the assault is reversed, and that part of the case is remanded to the Seoul High Court.

section 3.

The grounds of appeal are examined.

One punishment is not imposed by recognizing the conviction of several concurrent crimes in the relationship of concurrent crimes.

In a final and conclusive judgment of a court rendered, it is deemed that there is reason for request for retrial only for the crime of some part.

In the case of recognition, one sentence is imposed on the judgment which has been pronounced formally, and the judgment is wholly delivered.

Although it is inevitable to make a decision on the commencement of a new trial, in the nature of the new trial system, which is an emergency remedy.

The effect of the decision to commence a retrial on facts constituting an offense for which no ground for retrial exists shall be formally made.

Since it is limited to inclusion in the object of adjudication, the retrial court shall re-examine the part.

of this case, the conviction cannot be reversed; Provided, That this part of this case shall be tried in good manner.

Only to the extent necessary for sentencing (see, e.g., Supreme Court Decision 96 June 6, 1996).

14. Supreme Court Decisions 96Do477 delivered on July 13, 2001; 2001Do1239 delivered on July 13, 2001, etc.

According to the reasoning of the judgment below, the court below held that the defendant emergency assistance in the judgment for retrial.

One year of imprisonment and suspension of qualifications for each of the charges of violation of subparagraph 9 of this Article and assault;

(1) The Emergency Decree No. 9 of the Republic of Korea(hereinafter referred to as the "Presidential Emergency Decree No. 9") is unconstitutional.

On the ground that the above judgment subject to a retrial was defective, the Seoul High Court held that the appeal was dismissed, and the appeal was dismissed.

The grounds for retrial under Article 420 subparagraph 5 of the Criminal Procedure Act on the violation of emergency measures among the facts in a lawsuit are the grounds for retrial.

The decision to commence a new trial and become final and conclusive on the whole of the decision subject to a new trial

After recognizing the facts, the unconstitutional statutes were applied to the facts charged in violation of the above Emergency Decree.

on the ground that the defendant is not guilty on the ground that he/she is a police officer, and the defendant's back head as well as 1

With respect to the facts charged of assault that the defendant sent back and pushed down, the defendant's urgent assistance;

The conduct of a criminal defendant on the ground that he/she violates the custody subparagraph 9 does not constitute legitimate execution of duties.

Since the act of the defendant is not illegal as self-defense, it is judged that the act of the defendant is not guilty.

The decision was completely reversed.

However, examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the concurrent crime relationship

The charge of the violation of emergency measures of this case and the violation of emergency measures among the charges of violence

The grounds for retrial were clearly asserted and the grounds for retrial were recognized.

However, since all of the judgment of retrial is indivisible, all of the judgment of retrial shall be formally.

Inasmuch as the new trial was rendered on the commencement of the new trial, the new trial court

As to the part of violence that did not assert the grounds for conviction, the court shall re-examine it to find guilty.

It can only be tried to the extent necessary for sentencing.

It will be said that it will be "."

Nevertheless, the lower court re-examines the part of the assault, contrary to this, as to whether the assault was guilty or not.

The judgment of conviction was reversed and rendered not guilty, and the judgment of retrial was made not guilty.

In so determining, the lower court did not err by misapprehending the legal principles on the scope of application.

The reason for appeal is with merit.

Therefore, the part of the judgment of the court below regarding the act of assault is reversed and this part of the case is remanded.

The case shall be remanded to the court below for a determination, and the opinion shall be raised by the assent of all participating Justices.

this decision is delivered with the assent of all Justices.

Justices Lee Jae-soo

Justices Kim Yong-deok

Justices Kim In-young

Justices Lee Dong-won