[1] In a case where the judgment of the court below is reversed by the appeal by only the defendant, and the case is remanded to the appellate court, whether the principle of prohibition of disadvantageous alteration applies to the relationship with the judgment below before remand (affirmative)

[2] The case holding that the court below's order of suspension of the execution of imprisonment and the order of community service was in violation of the principle of prohibition of disadvantageous alteration after remanding the case where only the defendant appealed and reversed the judgment of the court below before two fines were remanded

[1] Article 368 of the Criminal Procedure Act / [2] Article 368 of the Criminal Procedure Act

[1] Supreme Court en banc Decision 64Do298 delivered on September 17, 1964 (No. 12-2, 17) Supreme Court Decision 79Do2105 delivered on March 25, 198 (Gong1980, 12754) Supreme Court Decision 92Do2020 Delivered on December 8, 1992 (Gong193, 496)

Defendant

Defendant

Attorney Lee Sang-hoon

Supreme Court Decision 2003Do1166 Delivered on July 14, 2005

Suwon District Court Decision 2005No2810 Decided October 26, 2005

All the judgment of the court below and the judgment of the court of first instance are reversed. The defendant shall be punished by a fine of 8,000,000 won. If the defendant fails to pay the above fine, 50,000 won shall be confined in the workhouses for the period calculated by converting the amount of 1 day into the daily period. The number of detention days before the judgment of the court of first instance is rendered

1. The grounds of appeal are examined.

In a case where the judgment of the court of final appeal is reversed by the defendant's final appeal, and the case is remanded to the appellate court, the court below's judgment shall not be sentenced more severe punishment than the reversed appellate court's judgment on September 17, 1964 because the principle of prohibition of disadvantageous alteration is applied to the relation with the judgment of the court below prior to remand (see Supreme Court en banc Decision 64Do298, Sep. 17, 1964; Supreme Court Decision 79Do2105, Mar. 25, 198; Supreme Court Decision 92Do2020, Dec. 8, 1992).

According to the records, the original judgment was sentenced to a fine of 7,00,000 won and fine of 2,00,000 won for the crimes listed in Articles 2 and 4 of the judgment of the court below as stated in the judgment of the court below as to the crimes listed in Articles 1 and 3 of the judgment of the court below, and the defendant appealed the judgment of the court of final appeal, and the case was remanded to the appellate court, and the judgment below was remanded to the appellate court, and the court below rendered a suspended sentence of 2 years and 80 hours of community service order for each crime listed in the judgment of the court below. Accordingly, the court below's decision after the remand did not affect the conclusion of the judgment in violation of the principle of prohibition of disadvantageous alteration, since the court below sentenced a suspended sentence of imprisonment with prison labor and a community service order, which is a supplementary disposition,

The appeal pointing this out is with merit.

2. In addition, decisions are made ex officio.

The lower court found the Defendant guilty by applying Article 2(2) and (1) of the former Punishment of Violences, etc. Act (amended by Act No. 7891 of Mar. 24, 2006; hereinafter “former Act”) and Article 283(1) of the Criminal Act to the crime of intimidation at night as to each of the judgment against the Defendant.

However, since the Act on the Punishment of Violences, etc. (amended and enforced by Act No. 7891 of March 24, 2006) deleted the part of aggravated punishment of a person who committed a crime under Article 283(1) of the Criminal Act at night under Article 2(2) of the former Act, it constitutes “when a punishment is abolished after judgment” under Article 383 subparag. 2 of the Criminal Procedure Act, the judgment of the court below is no longer maintained, and the remaining convictions in relation to each of the above crimes and Article 37 of the Criminal Act cannot be exempted.

3. Therefore, the judgment of the court below is reversed, but this case is deemed sufficient to be directly tried by the Supreme Court, and thus, it is decided in accordance with Article 396(1) of the Criminal Procedure Act.

4. The self-market part

In light of the records, the judgment of the court below on the grounds for appeal by the defendant was examined ex officio prior to the judgment of the court below, and since each of the facts charged in this case was changed through legitimate procedures, the deliberation and the judgment of the court of first instance cannot be maintained on the premise of the facts charged prior to the change, and thus, it is reversed ex officio pursuant to Article 364(2) and (6)

A. Summary of facts and evidence

The summary of the facts constituting the offense against the defendant recognized by this court and the summary of the evidence are as stated in each corresponding column of the judgment of the court of first instance, which has been cited in the following, and thus, they are cited in accordance with Articles 399 and 369 of the Criminal Procedure Act.

(b) the application of legislation;

Of each act of the defendant's holding, each fraud is subject to Article 347 (1) of the Criminal Act; each of the intimidation is subject to Article 283 (1) of the Criminal Act; each of the prescribed penalties is subject to concurrent crimes under the former part of Article 37 of the Criminal Act; since each of the above offenses is concurrent crimes under Articles 38 (1) 2 and 50 of the Criminal Act, the defendant is subject to a fine of KRW 8,00,000 within the scope of the amount of aggravated concurrent crimes with the punishment provided for in the crime of fraud against the non-indicted who is the largest judgment in which the punishment and the punishment are imposed in accordance with Articles 38 (1) 2 and 50 of the Criminal Act; if the defendant fails to pay the above fine, the defendant is detained in the workhouse for the period calculated by converting 50,000 won into one day under Articles 70 and 69 (2) of the Criminal Act; and the first day of detention before the judgment in the court of first instance is included in the period of detention.

C. Acquittals

With respect to the violation of the Punishment of Violence, etc. by Night Intimidation among the facts charged in the instant case, a judgment of acquittal shall be rendered as stated in Article 326 subparag. 4 of the Criminal Procedure Act on the ground that "when a sentence is repealed due to the repeal of Acts and subordinate statutes after the crime," and the judgment of acquittal shall be rendered on the grounds that Article 283(1) of the Criminal Act applies to each of the intimidation included in the facts charged in this part, and thus, a judgment of acquittal shall not be rendered

5. It is so decided as per Disposition by the assent of all participating Justices on the bench on the ground that the judgment of the court of first instance and the judgment of the court of first instance are all reversed.

Justices Lee Kang-soo (Presiding Justice)