In a case where only the prosecutor appealed against the judgment of the first instance on the ground that only the punishment is too unfasible and unfair, and the defendant did not file an appeal, the defendant may not file an appeal against the judgment of the appellate court on the ground that the defendant is not guilty of the fact due to the violation of the rules of evidence or the failure of examination (see Supreme Court Decision 2009Do579, May 28, 2009, etc.). According to the records, the prosecutor appealed against the judgment of the first instance on the ground that only the prosecutor is too less and less severe punishment against the defendant, and the court below accepted the prosecutor’s appeal and sentenced the defendant more severe punishment than the judgment of the first instance.

In such cases, the argument that the judgment of the court below erred by mistake of facts due to the failure to examine is not a legitimate ground for appeal.

In addition, the argument that the judgment of the court below contains an error of mistake of facts as to the premise of sentencing constitutes an unfair argument of sentencing.

However, pursuant to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years has been imposed, an appeal may be filed on the grounds of unfair sentencing. As such, in this case where a more minor sentence has been imposed against the defendant, the argument that the amount of punishment is unfair does not constitute a legitimate

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.