[2] Where the appellate court reverses the judgment of the first instance on the ground of unfair sentencing because the appellate court does not coincide with its own sentencing determination, whether the method of examining and determining the sentencing is unlawful (negative); and even if the appellate court states without inconsistency the materials on sentencing, which served as the basis of the judgment of the lower court, and the contents of its determination, whether the grounds for the sentencing conditions are unlawful unless the reasons for

However, in the event that the sentencing of the first instance is deemed to have exceeded the reasonable bounds of the discretion when comprehensively considering the factors and sentencing criteria as indicated in the first instance sentencing process, or where it is deemed unfair to maintain the sentencing of the first instance in full view of the materials newly discovered in the appellate court’s sentencing process, the appellate court shall reverse the unfair judgment of the first instance.

[2] [Majority Opinion] Inasmuch as the appellate court has an inherent discretion in sentencing, which is distinct from the first instance court, as it has a nature of ex post facto review of the first instance court, even though it is not desirable to reverse the first instance court’s judgment on the ground of unfair sentencing on the ground that it does not coincide with its own sentencing determination, it cannot be said that the appellate court’s method of review and determination of sentencing is unlawful. In addition, where the lower court’s judgment states without contradiction the materials on sentencing on which the basis of the judgment was based and the content of its determination on the materials, it cannot be deemed unlawful even if it does not specify daily

[Dissenting Opinion by Justice Park Poe-young, Justice Kim Shin, and Justice Kwon Soon-il] The court of final appeal shall have the authority to examine whether the appellate court has properly determined the grounds for appeal against the judgment of the first instance, whether the appellate court has appropriately deliberated and determined the grounds for appeal, and whether the appellate court has appropriately deliberated and determined the said grounds for appeal, and whether the grounds for reversal are sufficient. Therefore, even in a case where the appellate court cannot reverse the judgment of the first instance, if the appellate court reversed the judgment of the first instance, it is erroneous that the grounds for appeal exist in the absence of the grounds for appeal. Thus, this is subject to review by the court of final appeal. This is not a review of whether the sentence imposed by the appellate court was unreasonable, but a review of whether the judgment on the grounds for

Furthermore, if the appellate court did not state objective and reasonable grounds that are recognized as a special reason to reverse the sentencing of the first instance court, it may also be evaluated as a violation of the law. In short, in the event that the sentencing of the first instance is maintained in the appellate court and the sentencing of the first instance is reversed in the appellate court, the degree of the statement in the appellate court’s reasoning may vary. This is only limited to “the grounds for appeal by the mistake of facts are without merit” when rejecting the grounds for appeal for mistake of facts, but it is only unreasonable to simply state that “the grounds for appeal by the mistake of facts are without merit.” The same is true when accepting the grounds for appeal in detail,

1. As to the assertion that there is an error in judgment of conviction

A. Defendant 1

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the determination of credibility of the statement, contrary to what is alleged in the grounds of appeal.

B. Defendant 2

According to the records, the defendant appealed against the judgment of the court of first instance and asserted only unfair sentencing as the grounds for appeal. In such a case, the argument that the judgment of the court below erred by mistake of facts and misapprehension of legal principles cannot be a legitimate ground for appeal.

2. As to the assertion that there is an error in sentencing determination

A. Article 361-5 subparag. 15 of the Criminal Procedure Act provides that “When there exists any ground to acknowledge the amount of punishment sentenced unreasonable,” as one of the grounds for appeal. In a case where the grounds for appeal are recognized, the appellate court reverses the judgment of the first instance pursuant to Article 364(6) and re-adjudications the judgment pursuant to Article 364(6). Thus, the appellate court should determine whether the amount of punishment of the first instance is unreasonable on the basis of all the materials submitted until

The term “unfair sentencing” refers to cases where the sentence of the lower judgment is too heavy or too minor in light of the substance of the specific case. Sentencing is based on the statutory penalty, and the judgment is made within reasonable and reasonable scope by taking into account the matters on the conditions of sentencing as prescribed in Article 51 of the Criminal Act, based on the statutory penalty, and there exists a unique area of the first instance court as to the determination of sentencing in our Criminal Procedure Act, which adopts the trial-oriented principle and the principle of directness. In addition, in light of these circumstances and the ex post facto nature of the appellate court, if there is no change in the conditions of sentencing compared to the first instance court, and the first instance court’s sentencing does not deviate from the reasonable scope of discretion, it is reasonable to respect it, and even if the first instance court’s sentence falls within the reasonable scope of discretion, it is desirable to refrain from imposing a sentence that does not differ from

However, in the event that the sentencing of the first instance is deemed to have exceeded the reasonable bounds of the discretion when comprehensively considering the factors and sentencing criteria as indicated in the first instance sentencing process, or where it is deemed unfair to maintain the sentencing of the first instance in full view of the materials newly discovered in the appellate court’s sentencing process, the appellate court shall reverse the unfair judgment of the first instance.

However, the appellate court should be deemed to have its own discretion of sentencing that is distinct from the first instance court, since the appellate court’s reversal of the first instance judgment on the ground of unfair sentencing on the ground that it does not coincide with its own sentencing judgment on the ground that it is not desirable for the appellate court to reverse the first instance judgment on the ground of unfair sentencing on the ground that it does not coincide with its own sentencing judgment, it cannot be said that the method of examining and determining the sentencing is unlawful. In addition, in a case where the lower court’s aforementioned judgment states without inconsistency the materials underlying the sentencing and the contents of its judgment on the grounds of sentencing, it cannot be deemed unlawful even if it does not specify daily grounds for sentencing (see, e.g., Supreme Court Decision 94Do2584, Dec. 13, 194).

B. Meanwhile, under Article 383 Subparag. 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is allowed only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years is imposed. The fact-finding court erred by misapprehending facts on the basis of sentencing or failing to conduct a proper deliberation on the circumstances that constitute the conditions of sentencing constitutes an allegation of unfair sentencing to the effect that disputing the judgment of the lower court on the grounds that it did not properly deal with such facts (see, e.g., Supreme Court Decisions 87Do1410, Jan. 19, 198; 2013Do7876, Sept. 26, 2013

C. The Defendants asserted that the lower court erred in violation of the principle of balanced criminal punishment or the principle of responsible responsibility due to erroneous determination of facts, misunderstanding of legal principles, and incomplete hearing. However, in light of the above legal principles and the reasoning of the lower judgment, the above assertion is merely the purport that the lower court’s sentencing is practically unfair.

Therefore, in this case where the defendants are sentenced to a more minor punishment than the punishment prescribed in Article 383 subparag. 4 of the Criminal Procedure Act, the argument that the punishment prescribed by the court below is unfair because it is too unreasonable, including the above argument, is not a legitimate ground for appeal.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion by Justice Park Poe-young, Justice Kim Shin, and Justice Kwon Soon-il.

4. Dissenting Opinion by Justice Park Poe-young, Justice Kim Shin, and Justice Kwon Soon-il is as follows.

A. If the judgment of the court of first instance is made within the reasonable scope of sentencing, the appellate court shall respect it. However, if there are circumstances such as: (a) it is deemed that the judgment of the court of first instance exceeded the reasonable limit of discretion in light of the conditions of sentencing as shown in the first instance’s sentencing hearing and the sentencing guidelines; or (b) it is deemed unfair to maintain the judgment of the court of first instance as it is in full view of the materials taken place in the appellate court’s sentencing hearing, the appellate court shall reverse the judgment of the court of first instance.

However, the argument that the appellate court reverses the judgment of the first instance even though the above circumstances are not acknowledged, or that the appellate court’s reversals the judgment of the first instance without proper deliberation, determination, and explanation of the reasons for the reversal of the judgment of the first instance, shall be deemed to be a legitimate ground for appeal as it points out illegality in the appellate court’s review of sentencing, determination of sentencing, and explanation of the reasons for reversal. Therefore, we cannot agree with the Majority Opinion that otherwise assessed.

B. The judicial review of the so-called discretionary act of an administrative agency with the discretion of the administrative agency is, in principle, subject to whether there is a deviation or abuse of discretion, taking into account the room for public interest determination by the administrative agency’s discretion, and the court may not revoke it unless it is assessed to be a deviation or abuse of discretion. In comparison with the discretionary administrative act, the sentencing of the first instance court, which is a judicial action, should be respected to the maximum extent that the determination of the sentencing of the first instance court is not considered to have exceeded the reasonable bounds of discretion, is too natural.

In the past, the appellate court reversed the judgment of the first instance on the grounds that even though the sentencing of the first instance is within the reasonable range of sentencing, it does not coincide with the sentence that the appellate court considers as the most appropriate, the appellate court has rendered a sentence that does not differ from the first instance court or maintained the principal sentence and suspended only the execution of the sentence. However, such practice of appellate court is not desirable in terms of policy in that it is far away from the attitude that respects the sentencing of the first instance court as much as possible, and it is so far as it is far as the attitude that respects the sentencing of the first instance court to the maximum extent, and thus, it may encourage and ultimately prejudice the trust in the judicial system, and it is erroneous to determine that the appellate court erred in its judgment that there exists a reason for appeal

C. The Majority Opinion argues that the appellate court’s judgment that the sentencing of the first instance is unfair cannot be deemed to be “illegal,” barring any special circumstances, but it is difficult to accept it. The appellate court has the authority to review, as a legal trial, whether the appellate court properly determines whether the grounds for appeal against the judgment of the first instance exist, whether the appellate court appropriately deliberated and determined the judgment, and whether the appellate court reverses the judgment of the first instance by deeming that the grounds for appeal exist in the appellate trial. Therefore, even in a case where the appellate court cannot reverse the judgment of the first instance, if the appellate court reverses the judgment of the first instance, it should be deemed that the appellate court erred in its judgment that there was no grounds for appeal, and thus, it should be deemed to be subject to review by the appellate court. This is not to review whether the sentence imposed by the appellate court was unfair, but to review whether the judgment on the grounds for appeal was properly made

If the sentencing of the first instance court was conducted within the reasonable scope of sentencing by accepting the so-called "the so-called theory of width" in sentencing as stated in the majority opinion, it should be respected, but it cannot be viewed as a legitimate ground for appeal even if the appellate court violated this provision. It does not agree with the waiver of the normative power of the legal principles as expressed by the

D. Furthermore, if the appellate court did not state objective and reasonable grounds for reversal, which are acknowledged as a special circumstance, to reverse the sentencing of the first instance court, this may also be evaluated as a violation of the law.

Article 39 of the Criminal Procedure Act provides that "The reasons shall be specified in the judgment: Provided, That the same shall not apply to a ruling or order which does not permit an appeal." However, Article 323 of the Criminal Procedure Act provides the scope of the reasons to be specified in the judgment of conviction, and there is no other provision regarding the reasons to be specified in the judgment of conviction. Thus, it is inevitable to determine a certain degree of reasons depending on the nature of the judgment (see Supreme Court Order 96Mo94, Nov. 14, 1996, etc.).

Unless a sentence of 10 years or more has been pronounced as in the past, the appellate court does not interpret that the appellate court has an unlimited discretion in sentencing, and it is natural to require the appellate court to state objective and reasonable grounds on the circumstances that could reverse the sentencing of the first instance in the event the appellate court reverses the sentencing of the first instance in the event of circumstances where it is deemed that the sentencing of the first instance has exceeded the reasonable bounds of its discretion or that the appellate court’s maintenance of the sentencing of the first instance is unreasonable in full view of the materials presented in the course of the appellate court’s sentencing hearing.

For instance, if the appellate court reverses the judgment of the first instance on the grounds that “the sentencing of the first instance is unreasonable” only after the conditions of sentencing identical to that of the first instance court, it would not be easily accepted by the parties to whom such judgment was rendered. This is because there is no reason to reverse the judgment of the first instance. Therefore, if the judgment of the first instance differs from the judgment of the first instance, it is necessary to specify in detail how the first instance sentencing is inappropriate in any point of view after faithfully examining the sentencing, and how the new conditions of sentencing presented in the appellate court affect the sentencing of the defendant.

Supreme Court Decision 94Do2584 Decided December 13, 1994 cited by the majority opinion is that the judgment of dismissal of appeal is not unlawful even on the ground that "the sentencing of the first instance court is deemed appropriate in view of the motive for the crime of this case, the instrument and method of the crime, the character, conduct, criminal record, age, occupation and environment, etc. of the defendant," and it is reasonable to view it as a precedent that conforms to the dissenting opinion that should explain more specific reasons for reversal in the event of reversal of the judgment of the first instance court.

In short, the degree of the appellate court’s reasoning should vary in cases where the sentencing of the first instance is maintained as it is by the appellate court and the sentencing of the first instance is reversed by the appellate court. This is nothing more than simply “the grounds for appeal by the person who has committed a mistake of facts are without merit” when rejecting the grounds for appeal by mistake of facts. However, the same is true in cases where the grounds for appeal by the person who has committed a mistake of fact are accepted.

E. Review of the reasoning and records of the first instance court and the lower court’s judgment reveals the following facts.

(1) The first instance court found Defendant 1 guilty of the remainder of the facts charged except for the part of the facts charged as to the Defendants, which was found not guilty among the facts charged in the instant case, and sentenced Defendant 1 to imprisonment with prison labor for ten months, and explained that “In light of the fact that the crime of this case was planned in advance to harm the sound labor spirit of the entire society, maintain a large number of victims, and mislead the motive for the crime rather than contingent or maintain a livelihood, the crime of this case is not less severe, and the crime of this case is the principal offender of the crime of this case, and that the Defendant denied some of the crimes during the period of repeated crime.” The Defendant knew that the crime of this case was committed during the repeated crime, which was committed by the Defendant, was also illegal game products, and considering all the circumstances, such as the Defendant’s environment, etc., for the reasons of sentencing.”

(2) As to the judgment of the first instance, both the Defendants and the Prosecutor appealed, and the lower court closed arguments on the first day without examining any evidence or examining the Defendant, and, in its explanation of similar circumstances to the grounds for sentencing as stated by the first instance court, accepted the prosecutor’s allegation of unfair sentencing on the sole ground that “the first instance court’s punishment is somewhat unreasonable and unreasonable,” and reversed the judgment of the first instance, sentenced Defendant 1 to four years of imprisonment and Defendant 2 to one year and six months of imprisonment.”

F. Examining the above proceedings and the reasons for the judgment of the court of first instance in light of the aforementioned legal principles, it is difficult to deem that the judgment of the court of first instance exceeded the reasonable bounds of discretion in light of all the conditions for sentencing under Article 51 of the Criminal Act, which were revealed in the course of the trial of sentencing of the court of first instance, or that there is a change in circumstances to the extent to reverse the judgment of the court of first instance even if the materials presented in the course of the trial of sentencing were added to the materials presented in the appellate court. Furthermore, even if the court of first instance rendered a heavier punishment than the court of first instance in the absence of any change in circumstances between the court of first instance and the court of first instance, it did not conduct an additional examination on the circumstances on which the court of first instance served as the basis for such judgment

Therefore, in so determining, the lower court erred by misapprehending the legal doctrine on the appellate court’s review of sentencing, determination of sentencing, and explanation of the reasons for reversal, thereby affecting the conclusion of the judgment, it shall be reversed.

As above, we express our dissent with the Majority Opinion.

Justices Yang Sung-tae (Presiding Justice)