[1] In a case where a decision of commencing a new trial becomes final and conclusive as to a final and conclusive judgment of conviction, and the court rendered a new trial and rendered a new trial, whether the previous final and conclusive judgment is naturally null and void (affirmative)

[2] The meaning of "a trial based on evidence of the original judgment" under Article 420 subparag. 4 of the Criminal Procedure Act

[1] Articles 420, 435, and 438 of the Criminal Procedure Act / [2] Article 420 subparagraph 4 of the Criminal Procedure Act

[1] Supreme Court Decision 2004Mo453 Decided September 28, 2005, Supreme Court Decision 2017Do5715 Decided June 29, 2017, Supreme Court Decision 2017Do4019 Decided September 21, 2017 (Gong2017Ha, 2042) / [2] Supreme Court Order 86Mo15 Decided August 28, 1986 (Gong1986, 1416)

Defendant

Defendant

Attorney Park So-young

Gwangju High Court ( Jeonju) Decision 2018No59 decided October 23, 2018

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

1. A. A. When a judgment of retrial becomes final and conclusive as to a final and conclusive judgment of conviction, and a court pronounces a new judgment after re-adjudications the relevant case, and such final and conclusive judgment becomes final and conclusive, the previous final and conclusive judgment becomes void naturally (see, e.g., Supreme Court Order 2004Mo453, Sept. 28, 2005; Supreme Court Decision 2017Do4019, Sept. 21, 2017).

B. Meanwhile, Article 420 Subparag. 4 of the Criminal Procedure Act provides that “when a trial of the original judgment was changed by the final and conclusive judgment,” which is the grounds for a request for a retrial against a final and conclusive judgment of conviction.” “a trial of the original judgment” under the above provision refers to another trial cited in recognizing the facts that were adopted as evidence among the grounds in the original judgment and constituted a crime (see Supreme Court Order 86Mo15, Aug. 28, 1986, etc.).

2. According to records, etc., the following facts are revealed.

A. After having been punished four times for the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, the Defendant was sentenced to imprisonment with prison labor for the same crime at the Jeonju District Court on April 2, 2008, and the judgment became final and conclusive as it is.

B. On April 17, 2014, the Defendant was sentenced to imprisonment for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes at the Jeonju District Court, and on June 24 of the same year, the Defendant’s appeal was dismissed by the Gwangju High Court, and the said judgment became final and conclusive (hereinafter “instant final judgment”) and the execution of the sentence was terminated on June 20, 2017.

C. The first instance court: (a) recognized the fact that the Defendant, who adopted and approved the final judgment of this case as evidence, was sentenced two or more times, including the previous convictions according to the final judgment of this case, and was sentenced to imprisonment for not less than three years from September 10, 2017 to December 12, 2018 (hereinafter “instant criminal facts”); and (b) found the Defendant guilty by applying Article 5-4(6) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 329 and 342 of the Criminal Act, as to the instant criminal facts. The lower court upheld the first instance judgment.

D. Meanwhile, in the instant case, on December 6, 2018, the Jeonju District Court rendered a decision to commence a new trial on the grounds that there was a ground for retrial under Article 47(4) of the Constitutional Court Act, on the grounds that the grounds that there was a ground for retrial under Article 5-4(6) and (1) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 10210, Mar. 31, 2010; Act No. 13717, Jan. 6, 2016; Act No. 329 of the Criminal Act, Article 47(4) of the Constitutional Court Act, the former District Court rendered a decision to commence a new trial on the grounds that the Defendant was sentenced to imprisonment with prison labor for three years and six years and six months in a new trial (hereinafter “instant new judgment”) and the new judgment became final and conclusive as is, as is, in the instant case.

3. Examining the above facts in light of the legal principles as seen earlier, the final judgment of this case constitutes another judgment cited in finding the Defendant guilty of the facts constituting the crime of this case, stating the summary of the evidence among the grounds of the judgment of the first instance. However, the final judgment of this case became final and conclusive after the judgment of the lower court was rendered, and the final judgment of this case became final and conclusive, etc. Accordingly, the judgment of the first instance has grounds for a request for retrial corresponding to “when the judgment of the original judgment was changed by the final and conclusive judgment,” as prescribed in Article 420 Subparag. 4 of the Criminal Procedure Act, and there are grounds for constituting “when the judgment of the lower court maintaining such conclusion” as prescribed in Article 383 Subparag. 3 of the same Act. The grounds for final appeal

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)