A case in violation of the principle of prohibition of disadvantageous alteration

With respect to the judgment of the first instance which sentenced the sentence of imprisonment of 2 years and six months and fine of 7,500,000 won, if the defendant only appealed and sentenced the sentence of 2 years and six months and fine of 15,00,000 won to the suspended sentence of imprisonment, it would be contrary to the principle of prohibition of disadvantageous alteration.

Article 368 of the Criminal Procedure Act

Defendant

Voluntary salary materials

Seoul High Court Decision 80No1406 delivered on October 25, 1980

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the Defendant’s grounds of appeal.

According to the records and reasoning of the judgment below, according to Article 6 (6) of the Act on the Aggravated Punishment, etc. of Specific Crimes, the court below rendered a sentence of imprisonment for two years and six months and fine 7,500,000 won for the reason that the court of first instance erred in the application of the remaining Acts, which led to a mistake in the application of the provisions of the Criminal Act to the defendant, even though attempts to commit a crime of evading customs duties under Article 182 of the Customs Act should be punished in accordance with this crime, it is clear that the court below rendered a judgment of suspending execution for three years with respect to imprisonment for two years and six months and a fine 15,00,000 won.

However, when comparing the severity of the sentence of imprisonment with prison labor of two years and six months and fine of 7,500,000 won, the punishment of imprisonment with prison labor of two years and six months and a fine of 15,000,000 won, and the severity of the sentence of the year of the suspension of the execution of imprisonment with prison labor of 15,00,000 won, it shall be deemed that the latter sentence is more severe than that of the former and unfavorable to the defendant. Thus, in this case where only the defendant appealed, the above judgment of the court below cannot be deemed as an unlawful judgment contrary to the principle of prohibition of disadvantageous alteration as stipulated in Article 368 of the Criminal Procedure Act. On the contrary, there

Therefore, this appeal is with merit, and it is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon So-young (Presiding Justice)