1. 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 Regulation on Criminal Procedure shall provide that the grounds for appeal shall be clearly stated in the statement of grounds for appeal. According to the above provision, a prosecutor appeals to the whole judgment of the first instance that rendered a conviction or a partial conviction, or a partial acquittal, and if the prosecutor simply stated “in the petition of appeal or the statement of grounds for appeal” in the statement of grounds for appeal and did not state specific reasons, it shall not be deemed a legitimate reason for appeal. Meanwhile, in a case where a prosecutor has lodged an appeal, the reason for unfair sentencing does not constitute an ex officio or ex officio judgment. Therefore, the appellate court cannot review and determine whether the sentencing of the first instance judgment is unfair, and therefore, it is not permissible to reverse the sentence of the first instance judgment and sentence heavier than that of the first instance judgment on the grounds that the sentence of the first instance judgment is too unreasonable (see, e.g., Supreme Court Decision 20017Do17817.

2. The reasoning of the lower judgment and the record reveal the following facts.

A. The summary of the facts charged of this case is as follows: ① the Defendant 1 psychotropic drug tar tar tar m and driven a car using the drug containing the tar tar tar mm and crate mm; ② the Nonindicted Party, by negligence in the course of performing duties at the time of the operation, caused the injury to the victim, Nonindicted Party, his players, etc. by shocking the vehicle driven by the victim, resulting in the injury to the victim, and at the same time, escaped without taking measures such as providing relief to the victims, even if the Nonindicted Party’s vehicle was destroyed

B. As to the violation of the Road Traffic Act among the facts charged in the instant case, the first instance court acquitted the Defendant on the ground that it was not recognized that the Defendant could not drive normally due to the influence of drugs, and found the remainder guilty of the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (the bodily injury) and the violation of the Road Traffic Act (the non-accident after the accident) and sentenced a fine of five million won.

C. The prosecutor appealed to the entire judgment of the court of first instance. However, in the petition of appeal submitted by the prosecutor, the term "reasons for appeal" is sufficiently recognized as driving under the influence of drugs at the time of the occurrence of a traffic accident by taking the drugs at the time of the occurrence of the traffic accident, and the court below erred in misapprehending the facts and acquitted the whole facts charged, and thus, it is erroneous for the court below to correct it through appeal (the judgment of the court below was partly acquitted, and thus, it is unreasonable to impose the entire sentence) and there is no specific reason as to unjust sentencing.

D. The statement of reasons for appeal submitted by a public prosecutor within the statutory period stipulated in the main text of Paragraph 3 of the Reasons for Appeal. The main text of Paragraph 3 contains grounds for misconception of facts as to the violation of the Road Traffic Act among the judgment of the court of first instance. With respect to the unfair sentencing, since the defendant was in a state where he could not drive normally as seen above, as seen in the above, he could not drive normally by the influence of drugs, the court below erred by misconception of facts and erroneous determination of facts. In addition, compared to the nature of the crime, the sentence of first instance is too excessive, and the sentence of first instance was pronounced not only on the part of the judgment of the court of first instance but also on the part of the judgment of the court of first instance, which was unfair in its entirety, and there is no specific reasons as to the unfair sentencing as to the guilty part of the judgment of the court of first instance. The judgment of the court of first instance is reversed, and the sentence of the court below is too excessive, and there is no specific reasons for conviction as to the sentence corresponding to the period of first instance judgment.

E. On November 27, 2019, the public prosecutor stated the grounds for appeal on November 27, 2019, on the first day of the trial by the lower court, and stated that “the public prosecutor asserts mistake of facts as to the acquittal portion and unreasonable sentencing as the grounds for appeal.”

F. The lower court rejected the prosecutor’s grounds for appeal against the acquittal portion of the first instance judgment, and accepted the prosecutor’s grounds for appeal against unreasonable sentencing regarding the guilty portion of the first instance judgment, and dismissed the prosecutor’s appeal against the acquittal portion of the first instance judgment and reversed the guilty portion, and sentenced the Defendant to six months of imprisonment and two years of suspended execution

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

A. The prosecutor stated the guilty portion of the judgment of the court of first instance in the petition of appeal or the statement of reasons for appeal, but did not state specific reasons. Therefore, it cannot be deemed that the guilty portion of the judgment of the court of first instance indicated the grounds for appeal of unfair sentencing. Therefore, as long as the court below dismissed the prosecutor’s appeal as to the acquittal portion of the judgment of first instance, it is impossible to examine and determine whether the sentencing of the conviction portion of the judgment of the court of first instance is unfair either ex officio or ex officio, and thus, it is difficult to permit the defendant to sentence a sentence heavier than that of the

B. Nevertheless, the lower court determined that the sentencing of the first instance judgment is deemed unreasonable on the premise that the prosecutor presented the grounds for appeal of unfair sentencing as to the conviction part of the first instance judgment, based on the premise that the prosecutor presented the grounds for appeal of unfair sentencing, and reversed the first instance judgment and sentenced a sentence heavier than the first instance judgment. In so determining, the lower court erred by misapprehending the legal doctrine on the method of stating the prosecutor’s legitimate grounds for appeal and the scope of trial at the appellate court, thereby adversely affecting the conclusion

4. Conclusion

Therefore, the guilty portion of the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Jae-chul (Presiding Justice)