[1] The purport of Articles 368 and 399 of the Criminal Procedure Act concerning "Prohibition of Disadvantageous Alteration" / Where only the defendant appealed, whether it violates the principle of prohibition of disadvantageous alteration to the disadvantage of the defendant, while recognizing the acquittal of part of the criminal facts recognized by the court of appeal by the court of original judgment (negative)

[2] In a case where the judgment of the court of final appeal is reversed and the case is remanded to the appellate court due to the appeal by only the defendant, whether the court below cannot render a sentence more severe than the judgment of the court below before remanding the case under the principle of prohibition of disadvantageous change (affirmative)

[1] Article 368 of the Criminal Procedure Act concerning “Prohibition of Disadvantageous Alteration” provides that a case on which a defendant appealed and a case on behalf of the defendant is appealed shall not be sentenced to more severe punishment than that of the original judgment, and the above provision of the law shall also apply mutatis mutandis to the final appeal pursuant to Article 399 of the Criminal Procedure Act. The principle of prohibition of disadvantageous alteration is adopted by legislators as a result of policy consideration to prevent the exercise of the defendant’s right to appeal from being obstructed due to concerns that a more severe punishment than that of the original judgment may be sentenced in the appellate court. In light of the above provision of the law only prohibits the alteration into “a more severe punishment than that of the original judgment,” and the appellate court is not necessarily bound by the circumstances or opinions which were premised on the premise that the original judgment was determined. In a case on which only the defendant appealed, even if the appellate court acquitted the defendant of part of the criminal facts recognized by the original court, it cannot be deemed that it imposed the same punishment against the defendant, which is in violation of the principle of prohibition of disadvantageous alteration.

[2] Where the judgment of the court below is reversed in the final appeal due to Defendant only’s appeal, and the case is remanded to the appellate court, the principle of prohibition of disadvantageous change is also applicable to the relationship with the judgment below prior to remand, and the court below cannot render a sentence more severe than the judgment below prior to remand.

[1] Articles 368 and 399 of the Criminal Procedure Act / [2] Articles 368 and 399 of the Criminal Procedure Act

[1] Supreme Court Decision 2002Do5679 decided Feb. 11, 2003 (Gong2003Sang, 851) / [2] Supreme Court Decision 92Do2020 decided Dec. 8, 1992 (Gong1993Sang, 496) Supreme Court Decision 2005Do8607 decided May 26, 2006

Defendant

Defendant

Attorney Park Jong-chul

Supreme Court Decision 2020Do9688 Decided October 15, 2020

Daejeon District Court Decision 2020No3348 Decided January 14, 2021

The appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Article 368 of the Criminal Procedure Act concerning “Prohibition of Disadvantageous Change” provides that a case on which a defendant appealed and a case on behalf of the defendant appealed shall not be sentenced to more severe punishment than that of the original judgment, and the above provision of the law shall also apply mutatis mutandis to the final appeal pursuant to Article 399 of the Criminal Procedure Act. The principle of prohibition of disadvantageous change is adopted by legislators as a result of policy consideration to prevent the exercise of the defendant’s right to appeal from being obstructed due to concerns that a more severe punishment than that of the original judgment may be sentenced in the appellate court. In light of the above provision of the law only prohibits the change into “a more severe punishment than that of the original judgment,” and the appellate court is not necessarily bound by the circumstances or opinions which were premised on the premise that the original judgment was determined. In a case on which only the defendant appealed, it cannot be deemed that the appellate court acquitted the defendant of part of the criminal facts recognized by the original court, while it imposed the same punishment on the defendant, it cannot be deemed that it violated the principle of prohibition of disadvantageous change (see, 270, etc.

Meanwhile, in a case where the judgment of the court of final appeal by only Defendant was reversed, and the case was remanded to the appellate court, the principle of prohibition of disadvantageous alteration applies to the relation with the judgment of the court below prior to remand, and the court of original judgment cannot render a sentence more severe than the judgment of the court below prior to remand (see Supreme Court Decision 92Do2020 delivered on December 8, 192, etc.).

2. We examine the record in light of the aforementioned legal principles. The records reveal that the judgment of the court below prior to remand sentenced the part of breach of trust (the original judgment 2017DaDa2343), and the part of fraud (the original judgment 2017Da682, 2017Gadan800) to four years, and as a result, only the defendant appealed, the court below reversed each of the above parts of the judgment of the court below and remanded the case to the appellate court. After remanding the judgment of the court below, the court below sentenced the defendant not guilty of the part of the breach of trust in accordance with the purport of reversal and return. The court below sentenced the remaining part of the judgment of the court below to four years, which was identical to the judgment of the court below prior to remand. Unless the court below was sentenced more severe than the judgment of the court below prior to remand, the court below did not err by violating the principle of prohibition of disadvantageous change or by misapprehending the legal principles on the binding force of the judgment

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Jae-sung (Presiding Justice)