2022년도 형사법분야 대법원 주요판례와 평석

In a case where statutory sentences were eased by a general law revision among the precedents established by the Supreme Court in 2022, invoking temporal application at the time of decision without asking what derives such revision in accordance with the Article 1 Paragraphs 2 and 3 of the Criminal Act confirms the obvious principle of trial by law. Offender who is not in a position of specific legal status cannot be the principal offender in obstructing another from exercising one’s right which is status crime. Therefore, a simple logic that the person who instigate another to commit a crime from behind cannot be punished as an abettor in accordance with dependency on the principal offender in accomplice liability, should be modified by considering the criteria in the defendant’s disvalue of the act. Following precedents are pursuing the trend of recent precedents of Supreme Court; the precedent in which it shows that prerequisite of housebreaking cannot be fulfilled even if an offender trespassing the house for the purpose of a crime, unless de facto tranquility of residents is disturbed, and another precedent in which it does not constitute embezzlement when transferor of credits who transferred the bond to a third party, received and used the reimbursement without notifying the debtor.   If the Suspension of statute of limitations under the Criminal Procedure Act surpasses certain period of time without final judgment after the indictment, it would be inevitable under literary interpretation not to apply a statute of limitations which is deemed to be completed. In a precedent in which procedural defect where defendant’s right to cross-examination is not actually protected on account of absence of witnesses, cannot be resolved and also in another precedent in which the Supreme Court corrected the error of lower court judge who changed imposed sentence into three times heavier one just because of the defendant’s disturbance after the sentencing orders, we can get a sense of reasoning process of the Supreme Court. The majority opinion of en banc decision, admitting that the direct appeal from the defendant has the effect as an appeal, when prosecutor appeals while defendant makes direct appeal about the verdict of the first trial, is obviously persuasive compared to adverse opinion.