1. As to the assertion on the legality of indictment and the establishment of a crime of violating the Political Funds Act

Based on its reasoning, the lower court convicted the remainder of the facts charged except for the acquittal portion on the grounds indicated in its reasoning. Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by exceeding the bounds of the principle of free evaluation of evidence, contrary to what constitutes the constituent elements of Article 45(1) of the Political Funds Act, and by misapprehending the legal doctrine on the grounds for exclusion of illegality

2. As to the argument regarding the scope of the appellate court's trial and the principle of prohibition of disadvantageous alteration

A. Article 361-5 of the Criminal Procedure Act provides that “when there exists any reason to recognize the sentencing of the first instance judgment unreasonable” in subparagraph 15 of the same Article shall be the reason for appeal, and Article 155 of the Rules on Criminal Procedure shall provide that the grounds for appeal shall be clearly stated in the statement of appeal. According to each of the above provisions, the prosecutor appealed to the entire judgment of the first instance that rendered a judgment of conviction or a partial conviction, or a partial acquittal, and only stated in the petition of appeal or the statement of appeal that “the grounds for appeal” is merely “the grounds for appeal,” and if the prosecutor did not state the specific reasons, it shall not be deemed a legitimate reason for appeal. In the meantime, the grounds for unfair sentencing shall not be examined and determined ex officio or ex officio. Accordingly, the appellate court cannot examine and determine whether the sentencing of the first instance judgment is unfair, and therefore, it is not permitted to reverse the sentence of the first instance judgment and sentence heavier than that of the first instance judgment on the grounds that the punishment of the first instance judgment is too unfavorable (see, e.g., Supreme Court Decision 200317Do17817.

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) The summary of the facts charged in the instant case is that the Defendant, who was working as the executive officer, used the siren vehicle operated by Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”) by Nonindicted Co. 2 (hereinafter “Nonindicted Co. 1”) to pay sirens and wage, etc. as indicated in the list of crimes (hereinafter “crime list”) as indicated in the lower judgment during the period from June 15, 2016 to May 25, 2017, thereby receiving a contribution of an amount equivalent to the transportation cost equivalent to the amount of the political funds by means not specified in the Political Fund Act, and at the same time receiving a contribution of the amount of the non-indicted Co. 1, a corporation, at the same time, by using the siren vehicle in which Nonindicted Co. 2 (hereinafter “Nonindicted Co. 1”) paid sirens and wage, etc. as indicated in the list of crimes (hereinafter “crime list”). The Prosecutor indicted the facts charged in the instant case as a concurrence between the violation of Article 45(1) of

2) Of the facts charged in this case, the first instance court acquitted the Defendant on the grounds that the Defendant used the instant vehicle on the list of crimes Nos. 6-1, 8-1, 10, and 11 as indicated in the first instance judgment among the facts charged of violation of Article 45(1) of the Political Funds Act, and acquitted the Defendant on the grounds that it is not recognized that the Defendant used the instant vehicle, and sentenced the remainder to a fine of KRW 90,000 by recognizing the Defendant guilty of the violation of the Political Funds Act, and sentenced the Defendant to a fine of KRW 5(2)5 of the Political Funds Act as to the violation of Article 45(2) of the Political Funds Act

3) The Defendant appealed from the judgment of the court of first instance on the grounds of mistake of facts, misunderstanding of legal principles, etc., and the prosecutor appealed on the whole judgment of the court of first instance on the grounds of erroneous determination of facts and unreasonable sentencing. However, in the petition of appeal submitted by the prosecutor, “the grounds for appeal” means only the part except the above criminal facts, which was convicted of the violation of the Political Funds Act, although the court below found the Defendant guilty as to the receipt of political funds from a corporation in full view of the circumstances indicated in the records in the instant case, and there is no specific reasons as to

4) The part on the statement of grounds of appeal No. 3 (a) submitted by the prosecutor within the statutory period stipulated “in fact-finding and unfair sentencing.” The part on the main part of the main part of paragraph (3) stipulated the grounds for misconception of facts as to the violation of Article 45 (2) of the Political Funds Act among the judgment of the court of first instance. As to the unfair sentencing, the court below which sentenced a fine of KRW 90,000 to a fine only on the receipt of extra-court political funds (if the portion of funds received from a corporation is found guilty as above, it is deemed that there is an error in the law of unfair sentencing). The part on the grounds of appeal No. 3 (a) of the judgment of first instance does not contain specific reasons as to the guilty part of the judgment of the court of first instance. The part on the grounds of appeal also stated that “the original judgment was acquitted due to mistake of facts, and such illegality affected the sentencing of the court of first instance, and does not contain specific reasons as to the judgment of first instance on the conviction part.”

5) On October 17, 2019, the Prosecutor stated the statement of grounds for appeal on October 17, 2019, the first day of the trial by the lower court, and stated the gist of the grounds for appeal that “an error of mistake of facts and an unreasonable sentencing as to the acquittal portion as a whole is

6) The lower court rejected the Defendant’s grounds of appeal as to the guilty portion of the first instance judgment and the Prosecutor’s grounds of appeal as to the acquittal portion of the first instance judgment, and accepted the prosecutor’s grounds of appeal on the guilty portion of the first instance judgment, and reversed the entire judgment of the first instance judgment including the acquittal portion of the grounds for blanket crimes or ordinary concurrent crimes, and sentenced the Defendant to a fine of KRW 3 million, while rendering a judgment on the same offense as the judgment of the first instance.

C. We examine the above facts in light of the legal principles as seen earlier.

1) As to the conviction portion of the judgment of the court of first instance, the prosecutor only stated “unfair punishment” in the petition of appeal or the statement of grounds of appeal, and did not state specific reasons, the conviction portion of the judgment of first instance cannot be deemed to have stated the grounds for appeal of unfair sentencing. Therefore, as long as the court below dismissed the prosecutor’s appeal on the acquittal portion of the judgment of first instance, it is difficult to examine and determine whether the sentencing of the conviction portion of the judgment of first instance is unfair either ex officio or ex officio based on the prosecutor’s decision on the grounds for appeal, it is difficult to permit the Defendant

2) Nevertheless, based on the premise that the prosecutor presented the grounds for appeal of unfair sentencing as to the guilty part of the judgment of the court of first instance, the court below reversed the judgment of the court of first instance and sentenced a sentence heavier than the judgment of the court of first instance. In so determining, the court below erred by misapprehending the legal principles on the methods of the prosecutor’s legitimate grounds for appeal, the scope of the appellate court’s trial, the principle of prohibition of disadvantageous change, etc., which affected the conclusion of the judgment. The Defendant’s ground for appeal pointing

3. Scope of reversal

Of the judgment of the court below, the guilty part of the judgment of the court below shall be reversed, and the guilty part of the reasons for a single comprehensive crime or regular concurrent crimes shall be reversed together. Therefore, the judgment of the court below shall be reversed in its entirety.

4. Conclusion

Therefore, without examining the remaining grounds of appeal by the Defendant, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-hee (Presiding Justice)