Attempted fraud, fraud by use of computers, etc., and theft of night buildings;

1. Article 457-2(1) of the Criminal Procedure Act provides that “In a case where a defendant requests formal trial, no sentence of more severe punishment than that imposed by the summary order shall be imposed.” It provides that “The principle prohibiting the raise of punishment shall be imposed in the case where a formal trial is requested.”

2. The record reveals the following facts.

A. On June 11, 2018, the Suwon District Court rendered a summary order of KRW 3 million with respect to larceny, each crime of fraud, and the violation of the Specialized Credit Financial Business Act, to the Defendant, and only the Defendant requested formal trial.

B. The court of first instance joined the foregoing case (2018 High Court Decision 850) in the case of embezzlement, etc. of stolen objects, etc., and subsequently, the following seven cases were additionally joined.

C. On July 12, 2019, the first instance court: (a) chosen all of the crimes as indicated in the judgment of July 12, 2019 to punish the crimes as concurrent crimes; and (b) sentenced the Defendant to one year and two months of imprisonment; and (c) the Defendant and the public prosecutor filed an appeal on the grounds

D. On October 11, 2019, the lower court dismissed both the Defendant and the prosecutor’s respective appeals on unreasonable sentencing.

3. Examining the above facts in light of the legal principles as seen earlier, the part of the judgment of the first instance concerning the case involving 2018 High Court Decision 2018 High Court en banc Decision 850 was rendered by selecting imprisonment with prison labor, which is more severe than a fine imposed by the summary order even though the Defendant requested a formal trial. Thus, the part of the judgment of the first instance violates the principle of prohibition of raising the penalty prescribed in Article 45

Nevertheless, the court below upheld the judgment of the court of first instance, which affected the conclusion of the judgment in violation of Article 457-2(1) of the Criminal Procedure Act.

4. Therefore, without further proceeding to decide on the grounds of appeal, 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 Park Sang-ok

Justices Noh Jeong-hee

Justices Kim Jae-hwan of the District Court