Retrial finality and the elapsed part of a suspended sentence

1. 01Question

   Where the suspended sentence pronounced in the original judgment neither lapsed nor was revoked but its period expired, and a retrial judgment fixing a new sentence was then delivered, does the expiry of that period count as execution of the sentence, and may the part of the suspended period in the retrial-target judgment that had already elapsed by the date the retrial judgment became final be counted into the suspended period set by the retrial judgment?

2. 02Holding

   No to both. A retrial is a wholly new proceeding that tries the case afresh, so when the retrial judgment becomes final the original judgment loses effect of its own accord, and the expiry of the suspension period is only a legal effect of the suspended sentence pronounced in that judgment, not execution of the sentence. The part of the suspended period in the retrial-target judgment that had already elapsed by the date the retrial judgment became final therefore cannot be counted into the suspended period set by the retrial judgment, and this does not breach the prohibition on disadvantageous change or the principle of a retrial for the defendant's benefit, provided the sentence in the retrial judgment is not heavier than that of the original judgment.

   Summary of the holding, verbatim

   따라서 원판결이 선고한 집행유예가 실효 또는 취소됨이 없이 유예기간이 지난 후에 새로운 형을 정한 재심판결이 선고되는 경우에도, 그 유예기간 경과로 인하여 원판결의 형 선고 효력이 상실되는 것은, 원판결이 선고한 집행유예 자체의 법률적 효과로서, 재심판결이 확정되면 당연히 실효될 원판결 본래의 효력일 뿐이므로, 이를 형의 집행과 같이 볼 수는 없다.

   Unofficial English translation

   Accordingly, even where a retrial judgment sentencing a new punishment is rendered after the period of suspension of execution of sentence pronounced by the original judgment has expired without the suspension being forfeited or revoked, the loss of the effect of the sentence pronounced by the original judgment by reason of the expiration of the suspension period is merely the original effect of the original judgment that will naturally be forfeited once the retrial judgment becomes final and conclusive, as a legal effect of the suspension of execution of sentence pronounced by the original judgment itself, and thus it cannot be regarded as an execution of sentence.

3. 03Disposition

   Reversed and remanded Stated in the decision

   원심결정을 파기하고, 사건을 부산지방법원에 환송한다.

   Unofficial English translation

   The order of the court below is reversed, and the case is remanded to the Busan District Court.

4. 04Form of the test

   Elements stated Stated in the decision

   재심심판절차는 원판결의 당부를 심사하는 종전 소송절차의 후속절차가 아니라 사건 자체를 처음부터 다시 심판하는 완전히 새로운 소송절차로서 재심판결이 확정되면 원판결은 당연히 효력을 잃는다.

   Unofficial English translation

   The retrial proceedings are not a subsequent proceeding to the previous litigation proceedings that examines the propriety of the original judgment, but a completely new litigation proceeding that retries the case itself from the beginning, and once the retrial judgment becomes final and conclusive, the original judgment naturally loses its effect.

5. 05Factors

   • 재심심판절차는 원판결의 당부를 심사하는 종전 소송절차의 후속절차가 아니라 사건 자체를 처음부터 다시 심판하는 완전히 새로운 소송절차로서 재심판결이 확정되면 원판결은 당연히 효력을 잃는다.
   • 원판결이 선고한 집행유예 자체의 법률적 효과로서, 재심판결이 확정되면 당연히 실효될 원판결 본래의 효력일 뿐이므로, 이를 형의 집행과 같이 볼 수는 없다.
   • 재심판결의 형이 원판결의 형보다 중하지 않다면, 불이익변경금지의 원칙이나 이익재심의 원칙에 반한다고 볼 수 없다.
   • 피고인에 대하여 재심판결에서 또 다시 집행유예 판결이 선고된 경우, 그 집행유예기간에 ‘재심대상판결에서 정한 집행유예기간 중 재심판결 확정일까지 경과한 기간 부분’을 산입할 수는 없다.

   Unofficial English translation

   • The retrial proceedings are not a subsequent proceeding to the previous litigation proceedings that examines the propriety of the original judgment, but a completely new litigation proceeding that retries the case itself from the beginning, and once the retrial judgment becomes final and conclusive, the original judgment naturally loses its effect.

   • It is merely the original effect of the original judgment that will naturally be forfeited once the retrial judgment becomes final and conclusive, as a legal effect of the suspension of execution of sentence pronounced by the original judgment itself, and thus it cannot be regarded as an execution of sentence.

   • Unless the sentence in the retrial judgment is more severe than the sentence in the original judgment, it cannot be regarded as contrary to the principle of prohibition of reformatio in peius or the principle of beneficial retrial.

   • Where a judgment of suspension of execution of sentence is once again rendered against the defendant in a retrial judgment, the "portion of the period of suspension of execution of sentence determined in the judgment subject to retrial that has elapsed until the date the retrial judgment becomes final and conclusive" may not be included in calculating that period of suspension.

6. 06Relation to precedent

   Follows earlier decisions Stated in the decision

   대법원 2018. 2. 28. 선고 2015도15782 판결(공2018상, 657)

   Unofficial English translation

   Supreme Court Decision 2015Do15782 decided February 28, 2018 (Gong 2018 Sang, 657)

   Decisions referred to

   대법원 2018. 2. 28. 선고 2015도15782 판결(공2018상, 657)

7. 07Burden of proof

   Not addressed Not in the decision

8. 08Open question and revisit condition

   If the retrial judgment imposes a sentence heavier than the one in the retrial-target judgment, how do the prohibition on disadvantageous change and the principle of a retrial for the defendant's benefit apply once the original judgment has lost effect?

   The renewed decision of the Busan District Court on remand will show how the elapsed period is treated in practice. A later Supreme Court decision departing from Supreme Court Decision 2015Do15782, or an amendment to Article 62 of the Criminal Act, Article 63 of the Criminal Act, Article 65 of the Criminal Act, Article 420 of the Criminal Procedure Act, Article 421(1) of the Criminal Procedure Act, Article 439 of the Criminal Procedure Act or Article 459 of the Criminal Procedure Act, would require this entry to be read again.

Read 2026-10-24 · Cross-read 2026-10-24. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.

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