[1] The nature of a new trial proceeding and whether the original judgment becomes final and conclusive when a new trial judgment becomes final and conclusive (affirmative)

[2] When a suspended sentence is rendered, the period of the suspended sentence (i.e., the date when the suspended sentence is finalized)

[3] In a case where the defendant was sentenced for six months as a crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Intimidation, etc.) during the period of suspension of execution as provided in the judgment subject to a retrial and the sentence suspended for the defendant was executed since the sentence became final and conclusive, and the judgment of the court below, which is a new judgment, newly decided a sentence and rendered a stay of execution on the date of the final and conclusive judgment, the case affirming the judgment of the court below that the sentence specified in the judgment of new judgment does not go against the principle

[1] A retrial procedure is not a subsequent procedure of the previous litigation procedure that examines the propriety of the original judgment, but is a complete new litigation procedure that examines the case itself from the beginning, and the original judgment becomes final and conclusive, and the original judgment becomes null and void as a matter of course. This is derived from the inherent nature of a retrial that leaves 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, the invalidation of the original judgment or its incidental disposition loses the legal effect of the original judgment as a result of the final and conclusive judgment, and the extinguishment of the original fact itself that the original judgment or its incidental disposition was rendered, is natural in its nature, and thus, it does not constitute a violation of the legal status of

[2] Although our criminal law does not explicitly provide for the period of suspension of execution, in light of the purport that Article 459 of the Criminal Procedure Act provides that "a judgment shall be executed after the judgment becomes final and conclusive, except as otherwise provided in this Act, or the nature of the suspended execution system, etc., the period of suspension of execution should be the date when the judgment of the suspended execution becomes final and conclusive."

[3] In a case where the defendant was sentenced to six months of imprisonment due to a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Intimidation, etc.) during the period of probation as provided in the judgment subject to a retrial and the sentence suspended against the defendant became final and conclusive, and the judgment of the court below, which is a new judgment, determined a new sentence and rendered a stay of execution on the date of the final and conclusive judgment, the case affirming the judgment of the court below that the period of suspension of execution is not the final and conclusive date of the judgment subject to a retrial, but the period of the judgment of the court below, and even if the effect of the suspension of execution declared by the judgment subject to a retrial ceases to exist even if the effect of the judgment becomes final and conclusive due to the judgment becomes final and conclusive, the judgment of the court below that the judgment does not go against the principle of prohibition of disadvantageous change

[1] Articles 420, 438, and 439 of the Criminal Procedure Act / [2] Article 62 of the Criminal Act, Article 459 of the Criminal Procedure Act / [3] Articles 62(1) and 63 of the Criminal Act, Article 5-9(2) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 420, 438, 439, and 459 of the Criminal Procedure Act

[1] Supreme Court Decision 2015Do15782 Decided February 28, 2018 (Gong2018Sang, 657) / [2] Supreme Court Decision 2000Do4637 Decided February 26, 2002 (Gong2002Sang, 840)

Defendant

Prosecutor

Daegu District Court Decision 2017No4027 Decided August 9, 2018

The appeal is dismissed.

The grounds of appeal are examined.

1. A retrial proceeding is not a subsequent procedure of the previous litigation procedure that examines the propriety of the original judgment, but is a complete new litigation procedure that examines the case itself from the beginning, and when a new judgment becomes final and conclusive, the original judgment becomes null and void as a matter of course. This is derived from the inherent nature of a retrial that leaves 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, the invalidation of the facts itself, which lost the legal effect of the original judgment or its incidental disposition and that the sentence was rendered, is natural in light of the inherent nature of the retrial, and it does not mean that the legal status of the defendant who should be protected in the retrial, even if the defendant puts any disadvantage on account of the loss of the original judgment’s effect, does not change (see, e.g., Supreme Court Decision 2015Do15782, Feb. 28, 2018). Meanwhile, Article 459 of the Criminal Procedure Act does not explicitly provide for the period of suspended execution.

2. In the instant case where a suspended sentence becomes effective and a suspended sentence is executed against the Defendant on the grounds that the Defendant was sentenced to imprisonment for six months for a crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes during the suspended execution period prescribed in the judgment subject to a retrial, and the said suspended sentence becomes final and conclusive, on the grounds stated in its reasoning, the lower court determined that the period of suspended execution, if the Defendant again rendered a suspended sentence on the Defendant in a new judgment, shall not be the final and conclusive date of the judgment subject to a retrial, but shall be the date of the final and conclusive date of the judgment, and even if the effect of the suspended sentence that the judgment subject to a retrial ceases to exist even if the judgment becomes final and conclusive, this is natural in light of the nature of the retrial that

3. Examining the reasoning of the judgment below in light of the aforementioned legal principles, the court below’s decision that the period of the suspension of execution in the retrial procedure is the final and conclusive date of the judgment that sentenced the suspension of execution. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors

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

Justices Kim Jong-hee (Presiding Justice)