In Article 439 of the Criminal Procedure Act, the purport of the provision that “no more severe punishment than that in the original judgment shall be pronounced” is that “the retrial shall be rendered,” / The nature of the retrial procedure, and whether the original judgment shall become null and void as a matter of course (affirmative) / The scope of validity of the confirmation of a new judgment and whether the legal status of the defendant’s entry in the original judgment shall be protected in the retrial due to the invalidation or cancellation of the validity of the original judgment (negative)

Articles 420, 421(1), 438(1), and 439 of the Criminal Procedure Act

Supreme Court Decision 2015Do15782 Decided February 28, 2018 (Gong2018Sang, 657)

Defendant

Defendant

Chuncheon District Court Decision 2018No171 decided July 26, 2018

The appeal is dismissed.

The grounds of appeal are examined.

1. The Criminal Procedure Act only permits so-called re-deliberation that a request for re-examination may be made for the benefit of a person who has been rendered a final judgment of conviction and a final judgment of dismissing an appeal or final appeal (Articles 420 and 421(1)). In light of the principle of re-deliberation, Article 439 of the Criminal Procedure Act provides, “No sentence heavier than that on the original judgment shall be imposed” (Article 439). This simply does not mean the principle that no sentence heavier than the original judgment cannot be imposed, but rather, it is the purport that re-examination shall be conducted to the extent that it does not undermine the legal stability of the defendant.

However, a retrial proceeding is not a follow-up procedure of the previous litigation procedure examining the propriety of the original judgment, but a complete new litigation procedure to decide the case itself from the beginning, and the original judgment becomes final and conclusive, and the original judgment becomes void as a matter of course. This is derived from the inherent nature of a retrial to reverse the legal stability maintained by the final and conclusive force of the judgment in order to realize a specific justice in a case where there is a serious defect in the final and conclusive judgment. Therefore, as a result, the effect of the original judgment or its incidental disposition becomes void and the effect of the fact itself, which the original judgment or its incidental disposition was declared final and conclusive, is natural in light of the inherent nature of the retrial, and thus, it does not mean that even if the Defendant put any disadvantage on the part of

Therefore, even in cases where a new judgment with a new punishment has been rendered after the suspension period without invalidation or cancellation of the execution period in which the original judgment was rendered, the effect of the sentence in the original judgment becomes invalidated due to the expiration of the suspension period is the legal effect of the execution of the execution period in which the original judgment was rendered, and the original judgment, which would naturally become null and void after the conclusion of the new judgment becomes final and conclusive. Therefore, this cannot be viewed as being the same as the execution of the sentence, and even if the original judgment becomes null and void upon the confirmation of the new judgment, even if the legal effect of the suspension period has ceased to exist, if the punishment of the new judgment is more severe than that of the original judgment, it cannot be deemed as contrary to the principle of prohibition of disadvantageous alteration or the principle of retrial (Supreme Court Decision 2015Do

2. On the grounds stated in its reasoning, the lower court rejected Defendant’s allegation in the grounds of appeal that: (a) the restoration of the probation period against Defendant, for whom the period of probation had already been set out in the judgment subject to a retrial, by a new judgment, would violate the principle of prohibition against alteration to disadvantage; (b) however, the first instance court accepted the grounds of appeal that it was erroneous for the lower court to reverse the first instance judgment and sentenced the Defendant to a suspended sentence heavier than the judgment subject to a retrial by reducing the punishment pursuant to Article 39(1) of the Criminal Act by reducing the sentence against the Defendant pursuant to Article 39(1)

3. The judgment of the court below is just on the basis of the legal principles as seen earlier, and there is no error in the misapprehension of legal principles as to the prohibition of disadvantageous alteration in the retrial.

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

Justices Jo Hee-de (Presiding Justice)