Main Issues

Whether the judgment of the court of second instance sentenced to more severe punishment than that of the convening authority of the court of first instance in a case in which the defendant was prosecuted by the court of first instance

Summary of Judgment

When the convening authority has exempted a defendant from the reduction of punishment or the execution of a sentence in accordance with the measure taken by the competent authority, the decision is interpreted as a change in accordance with the measure taken by the competent authority. The ordinary military court meeting, which is the case of the original court (the Supreme Court Order 63 seconds1 delivered on January 24, 63), has sentenced the defendant to two years of imprisonment, and the competent authority has sentenced the defendant to one year and six months of imprisonment by the defendant's appeal, and it is evident that the court below, upon the defendant's appeal, has sentenced the defendant to one year and six months of imprisonment, and recognized the case in accordance with the judgment by the competent authority. Thus, this is against the application of the original court's decision that the defendant shall not be sentenced to more severe punishment than the original judgment, and the violation of the application of the precedents also constitutes a violation of law

[Reference Provisions]

Articles 427 and 432 of the Military Court Act; Articles 368 and 383 of the Criminal Procedure Act

Appellant, Defendant

Appellant

Judgment of the lower court

The Army of the First Instance, the Ordinary Army of the Second Instance, the High Army of the Second Instance, the High Army of the Second Instance, the High Army of the Second Instance, and the High Army of the Second Instance 57 delivered on March 6, 1963

Text

the original judgment shall be reversed.

Reasons

As to the defendant's grounds of appeal, when the convening authority exempted the reduction of punishment or the execution of punishment in accordance with the assistance of the competent authority, such judgment should be interpreted as changed in accordance with the judgment of the court below (1. 24. 1. 24. 1. 24.). According to the records of this case, the first general law meeting of the court below for the first time is the defendant on November 2, 1962, who was sentenced to two years of imprisonment (20 days of detention) and the competent authority was sentenced to eight months of imprisonment, and the court below confirmed on March 6, 1963 by the defendant's public prosecution that the defendant was sentenced to one year and six months of imprisonment and confirmed on the 14th day of the same month as the competent authority decided on March 14, 1963. Thus, the case for which the defendant prosecuted is not sentenced more severe punishment than the sentence of the court below, and it constitutes a violation of Article 38 (1) 4 of the Act and thus, it does not constitute an obvious violation of law.