[1] The meaning of the principle of prohibition of disadvantageous alteration and the standard for determining disadvantage change

[2] The case holding that the case where a request for a formal trial is made with the notification of a summary order and the case where a public prosecution is instituted after consolidation and examination, and the sentence of imprisonment with prison labor is disadvantageously changed due to concurrent crimes

[1] The principle of prohibition of disadvantageous alteration is to guarantee the defendant's right to appeal or the right to request a formal trial against a summary order. In the case of a higher court or formal trial case appealed for the defendant only or on behalf of the defendant, the court shall not sentence more severe punishment than that already sentenced or notified to the defendant for the same criminal facts. The judgment as to whether a sentence has been changed disadvantageous to the sentenced defendant shall be based on the gravity of the criminal punishment under the Criminal Act. However, the judgment shall be based on whether the defendant is disadvantageous to him by considering the whole order such as both concurrent punishment and additional punishment, suspension of execution, total number of days pending trial, period of detention in a workhouse, etc. Furthermore, in case where a case other than a case for which the defendant requested an appeal or formal trial is requested is concurrent and examined, and where a case other than a case for which the defendant requested an appeal or formal trial is joined and examined, it shall not be a simple comparison of the punishment sentenced or notified after the consolidation and examination of the relevant case, but it shall be judged as to whether the combined judgment constitutes an alteration of the sentence.

[2] The case holding that the case where a request for formal trial was made with the notification of a summary order and the case where a public prosecution was instituted after consolidation and examination, and the sentence of imprisonment with prison labor is disadvantageously changed due to concurrent crimes

[1] Articles 368, 399, and 457-2 of the Criminal Procedure Act / [2] Article 457-2 of the Criminal Procedure Act

[1] Supreme Court en banc Decision 97Do1716 Decided March 26, 1998 (Gong1998Sang, 1101), Supreme Court Decision 2001Do3212 Decided May 13, 2003 (Gong2003Sang, 1392), Supreme Court Decision 2003Do1410 Decided May 16, 2003 (Gong2003Do4732 Decided August 20, 2004)

Defendant

Defendant

Han Law Firm, Attorney Han-soo

Chuncheon District Court Decision 2004No430 Delivered on September 17, 2004

The judgment of the court below is reversed, and the case is remanded to Chuncheon District Court Panel Division.

The principle of prohibition of disadvantageous alteration is to guarantee the defendant's right to appeal or the right to claim a formal trial against the summary order, and in the case of the higher court or the formal trial which only the defendant appealed for the defendant, the court shall not sentence more severe punishment than punishment already sentenced or notified to the same criminal facts.

Determination as to whether a sentence has been changed disadvantageous to a defendant sentenced to punishment shall be based on the severity of punishment under the Criminal Act, but it shall be based on whether the sentence is substantially disadvantageous to the defendant considering the whole order, such as concurrent punishment, additional punishment, suspension of execution, total sum of days of pre-trial detention, period of detention in a workhouse, etc. Furthermore, in cases where a defendant's appeal or formal trial is applied to concurrent crimes after a combination and examination of another case, the punishment sentenced or notified for the relevant case shall not be simply compared with the punishment sentenced to concurrent crimes, and it shall be determined whether the combined sentence is disadvantageous to the defendant by considering the objective circumstances that determine the legal status of the defendant, such as statutory punishment and sentence for the combined other cases, as a whole and in substance, by examining

According to the records, in the case of violation of the Road Traffic Act in the judgment of the court of first instance against the defendant, the case where the defendant requested a formal trial after receiving a summary order of a fine of KRW 3.5 million as to the violation of the Act on Special Cases concerning the Settlement of Traffic Accidents in the judgment of the court below was consolidated and tried, and as to the violation of the Act on Special Cases concerning the Settlement of Traffic Accidents in the judgment, the court of first instance sentenced the defendant to six months of imprisonment with prison labor as to each of the remaining crimes in the judgment of the court below. The court of first instance maintained the first instance's measure. In light of the principle of prohibition of disadvantageous change, it is obvious that the court of first instance changed the sentence to a fine for the summary order requested a formal trial to a punishment, and there is no ground to view that the sentence of imprisonment with prison labor after the consolidation is not a disadvantageous change to the defendant.

Therefore, the judgment of the court below that maintained the first instance court which sentenced only six months of imprisonment by combining the case where a formal trial is requested and the case where a public prosecution is instituted, is erroneous in the misapprehension of legal principles as to the principle of prohibition of disadvantageous alteration, and the ground of appeal pointing this out is justified.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-woo (Presiding Justice)