2019Do6767 virtual property damage and damage

(b) Definating;

A

Defendant

Busan District Court Decision 2018No3923 Decided May 9, 2019

July 24, 2019

The judgment below is reversed, and the case is remanded to Busan District Court.

The grounds of appeal are examined.

1. As to the assertion of mistake of facts and misapprehension of legal principles, the lower court convicted the insult of the facts charged in the instant case.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine regarding the establishment of insult and the lawful act.

2. As to the assertion of violation of the principle of prohibition of disadvantageous alteration, the principle of prohibition of disadvantageous alteration as stipulated in Article 457-2 of the former Criminal Procedure Act (amended by Act No. 15257, Dec. 19, 2017; hereinafter referred to as the "former Criminal Procedure Act") intends to guarantee the defendant's right to request a formal trial against the summary order. In a case where the defendant has requested a formal trial, the court may not render a sentence heavier than that of the summary order notified by the defendant (see, e.g., Supreme Court Decision 2018Do2513, Apr. 26, 2018); Article 457-2 of the Criminal Procedure Act (amended by Act No. 15257, Dec. 19, 2017; hereinafter referred to as the "Revised Act") provides that a sentence heavier than that of the defendant's case where the defendant has requested a formal trial may be imposed before the amendment of the former Act.

According to the records, ① the Defendant was notified of a summary order of a fine of KRW 3 million in relation to the facts charged in the instant case and requested a formal trial on November 2, 2017; ② the first instance court rendered a fine of KRW 5 million in relation to the instant case for which only the Defendant requested a formal trial; ③ The Defendant appealed against this, and the lower court rendered a judgment dismissing the appeal.

Examining the above facts in light of the legal principles as seen earlier, even in the case where only the Defendant requested formal trial before the enforcement of the amended Act, the lower court upheld the first instance judgment that rendered a heavier penalty than that of the summary order, and thereby, upheld the judgment. Ultimately, the lower court erred by misapprehending the principle of prohibition of disadvantageous alteration as stipulated in Article 457-2 of the former Criminal Procedure Act, which affected the conclusion of the judgment, and the allegation in the grounds of appeal on this point is with merit.

3. Conclusion

Therefore, 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.

2. Judgment of the presiding judge

Chief Justice Kim Jong-il

Justices Lee Dong-won

Justices Kim Gin-soo