Whether a case where dismissal of public prosecution can be sentenced for the same crime constitutes "a crime more severe than a crime recognized as the original judgment under Article 420 subparagraph 5 of the Criminal Procedure Act" (negative)

Article 420 subparagraph 5 of the Criminal Procedure Act provides that a person who has been pronounced guilty shall be innocent or acquitted, or a person who has been sentenced to a punishment shall be exempted from punishment or shall be exempted from punishment in cases where there is clear evidence to acknowledge a crime more severe than that recognized by the original judgment, and "a crime more severe than that recognized by the original judgment" under the above provision of the Criminal Procedure Act refers to a separate crime, which is separate from a crime recognized by the original judgment, and the statutory punishment of which is minor, so a case where dismissal of prosecution against the same crime may be dismissed shall not be considered as a minor crime.

Article 420 subparagraph 5 of the Criminal Procedure Act

Supreme Court Order 84Do2809 delivered on February 26, 1985 (Gong1985, 522) Supreme Court Order 86Mo15 delivered on August 28, 1986 (Gong1986, 1416)

Re-appellant

Incheon District Court Decision 96No595 delivered on August 18, 1994

Incheon District Court Order 96Reno3 dated May 29, 1996

The reappeal is dismissed.

The grounds of reappeal are examined.

Article 420 subparagraph 5 of the Criminal Procedure Act provides that "not guilty or acquittal against a person who has been pronounced guilty, or where there is clear evidence to acknowledge a crime more severe than that recognized by the original judgment or exemption from punishment against a person who has been pronounced guilty, a request for retrial may be made, and "a crime more severe than that recognized by the original judgment" under the above provision of the Criminal Procedure Act refers to a separate crime, which is separate from a crime recognized by the original judgment, and the statutory punishment is a minor crime. Thus, a dismissal of prosecution against the same crime can not be deemed as a minor crime (see Supreme Court Order 86Mo15, Aug. 28, 1986).

As asserted in the theory of lawsuit, even if the complaint against the re-appellant was revoked, it is nothing more than a ground for being sentenced to dismissal by the court. Thus, even if the public official in charge is sentenced to conviction against the re-appellant and the judgment became final and conclusive on the wind that did not receive the above letter of withdrawal of complaint and attach the record, such reason does not constitute a ground for retrial under Article 420 subparagraph 5 of the Criminal Procedure Act.

The decision of the court below to the same purport is just, and there is no error as the theory of lawsuit, and the above reasons do not constitute grounds for retrial under Article 420 subparagraph 1 or 7 of the Criminal Procedure Act. All arguments are without merit.

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Chang-tae (Presiding Justice)