[2] In a case where the first instance court convicted the Defendant of part of the facts charged and sentenced a fine of KRW 1 million upon receiving a prosecutor’s appeal, and reversed the first instance judgment and sentenced a fine of KRW 4 million, the case holding that the lower court erred by violating the principle of prohibition of disadvantageous alteration in its judgment, which sentenced a fine of KRW 3 million more severe than that of the summary order

1. As to the Defendant’s ground of appeal on the violation of the Pharmaceutical Affairs Act

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, the lower court is justifiable to have found the Defendant guilty of violating the Pharmaceutical Affairs Act (excluding the part of acquittal in the grounds of appeal) among the facts charged in the instant case. In so doing, it did not err by misapprehending the bounds of the principle of free evaluation of evidence against logical

2. As to the ground of appeal on the Defendant’s fraud

In the case of an inclusive crime, even though it is not specifically specified for each act forming part of the daily crime, if the whole crime is specified in the time and period of the crime, method of the crime, victim or counterpart, frequency of the crime, total amount of damage, etc., the crime is specified (see Supreme Court Decisions 99Do2934, Nov. 12, 199; 2004Do8661, Mar. 24, 2005; 2004Do8661, Nov. 24, 2007; 2000Do2119, Nov. 24, 2007; 200Do56416, Aug. 23, 2007).

The lower court determined on the premise that the facts charged in the instant charges constitute fraud, based on the following premise: “The Defendant, who is a doctor from January 1, 2010 to February 28, 2014, directly prepared the relevant drug or, even though the nurse independently prepared the relevant drug for an in-patient, he/she directly prepared the relevant drug and provided the drug guidance to an in-patient, as the name of medicine expenses, clothes guidance fees, etc., the National Health Insurance Corporation, Nonindicted Co. 1 and Nonindicted Co. 2 filed a claim for insurance proceeds with respect to the 2,907 beneficiaries from the National Health Insurance Corporation, and 7,36,65 won in total with respect to the number of 516 beneficiaries from the victim non-indicted Co. 1, 201, and 362 beneficiaries from the victim non-indicted Co. 2, the Defendant acquired the said KRW 6,979,967 in total with respect to the number of beneficiaries from the victim non-indicted 2 Co. 362.

According to the reasoning of the judgment of the court below, the defendant employed a pharmacist and let a pharmacist prepare medicine during one week a week, and the amount obtained by defraudation of this part of the facts charged includes insurance money related to the part that a pharmacist directly prepared medicine. As such, the defendant who had a pharmacist prepare medicine two times a week in the course of operating the hospital is unable to know about the amount of damage suffered by each beneficiary and each beneficiary, and therefore it is difficult to see that this part of the facts charged is specified.

Nevertheless, the court below held that this part of the facts charged was specified, and thus, it erred in the misapprehension of legal principles as to the specification of the facts charged. The ground of appeal assigning this error is with merit.

3. As to the ground of appeal on the violation of the principle of prohibition of disadvantageous alteration by the defendant and prosecutor

Article 457-2 of the Criminal Procedure Act provides that "No sentence more severe than that of a summary order shall be imposed on a case for which a defendant requests a formal trial," and provides the principle of prohibition of disadvantageous changes in the case of a request for formal trial."

According to the records, on December 26, 2014, the Suwon District Court rendered a summary order ordering Defendant to a fine of KRW 3 million upon the prosecutor’s request for a summary order. Accordingly, the first instance court that only the Defendant found the Defendant guilty of part of the facts charged in the instant case and sentenced Defendant to a fine of KRW 1 million. However, the lower court’s acceptance of the prosecutor’s appeal and reversed the first instance judgment and sentenced Defendant to a fine of KRW 4 million. Ultimately, the lower court erred by violating the principle of prohibition of disadvantageous alteration as stipulated in Article 457-2 of the Criminal Procedure Act. The Prosecutor and Defendant’s ground of appeal pointing this out are with merit.

4. Conclusion

Therefore, the judgment of the court below is reversed, and 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.

Justices Kim Chang-suk (Presiding Justice)