Whether a measure of denying an application for resumption of pleading made after the closing of argument is unlawful (negative in principle)

Article 305 of the Criminal Procedure Act

Supreme Court Decision 86Do769 Decided June 10, 1986 (Gong1986, 902) Supreme Court Decision 2008Do10365 Decided January 15, 2009

Defendant 1 and one other

Defendants

Attorneys Jeon Byung-deok et al.

Seoul Southern District Court Decision 2013No1248 decided January 9, 2014

All appeals are dismissed.

The grounds of appeal are examined.

1. As to Defendant 1 and his defense counsel’s grounds of appeal

First, the part on the violation of the Medical Service Act among the facts charged at the time of the original trial against Defendant 1 is examined. In a case where a defendant appealed against the judgment of the first instance on the sole ground of unreasonable sentencing, the judgment of the appellate court cannot be considered as the grounds for appeal, such as misconception of facts or misapprehension of legal principles (see, e.g., Supreme Court Decision 2006Do1719, Apr. 13, 2006). According to the records, Defendant 1 can be found to have appealed against this part of the judgment of the first instance on the grounds of unfair sentencing only as the grounds for the appeal. Thus, the argument of mistake of facts or misapprehension of legal principles that only

In light of the evidence duly admitted by the lower court, the lower court’s judgment that found Defendant 1 guilty of this part of the facts charged is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of the logical and empirical rules, or by exceeding the bounds of the principle of free evaluation of evidence, or by failing to exhaust all necessary deliberations by misapprehending the legal doctrine on the violation of the Constitution or statutes, wording, legitimate act, self-defense, etc.

2. As to Defendant 2’s grounds of appeal

A. As to the first ground for appeal

In addition, as alleged in the grounds of appeal, it is difficult to find out whether the procedural violation or abuse of the right to command the litigation was committed, and even if there were circumstances as alleged in the grounds of appeal, it is difficult to view that such direction of the litigation was considerably improper or inappropriate as illegal as a matter of course. Accordingly, the ground of appeal on this part is rejected.

B. Regarding ground of appeal No. 2

Article 305 of the Criminal Procedure Act provides that "the court may, if deemed necessary, reopen the closed pleadings ex officio or at the request of the prosecutor, the defendant, or his/her defense counsel, by a ruling." Thus, even in cases where an application for resumption of the closed pleadings is filed after the closure of the pleadings, whether or not the closed pleadings are resumed belongs to the court's discretion. Thus, as long as a prosecutor or the defendant has been given sufficient opportunity to assert and prove his/her arguments, and the court has not accepted the application for resumption of the pleadings thereafter unless there are other special circumstances (see Supreme Court Decision 2008Do10365, Jan. 15, 2009, etc.

According to the records, the court below can find out that Defendant 2 and his defense counsel provided sufficient opportunity to assert and prove, and that the pleading has been closed, and there is no other reason to find that the court below erred in any measure which did not resume the pleading after the closing of argument. Accordingly, the argument in the grounds of appeal on this part is not accepted.

C. Regarding ground of appeal No. 3

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, it is justifiable for the lower court to have found Defendant 2 guilty of fraud in the facts constituting the crime indicated in the lower judgment. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary

3. Conclusion

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

Justices Kim Yong-deok (Presiding Justice)