2020Do4140 A. Murder

(b) Abandonment of a corpse;

(c) Child Welfare Violation (child abandonment or neglect);

Defendant 1 and one other

Defendants and Prosecutor

Attorneys Kim Young-jin et al.

Seoul High Court Decision 2020No81 Decided March 26, 2020

October 22, 2020

The part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to the Seoul High Court.

All of the Prosecutor’s appeals against Defendant 2 and Defendant 2’s appeals are dismissed.

The grounds of appeal are examined.

1. As to the Prosecutor’s ground of appeal on Defendant 1

A. Case summary and key issues

1) Case summary

The Juvenile Act provides that, in cases where a person imposes an irregular sentence on a juvenile under the age of 19, the term shall not exceed ten years, and the short term shall not exceed five years (the proviso to Article 2 and Article 60(1)), and the Act on Special Cases concerning the Punishment of Specific Crimes (hereinafter referred to as the "Specific Crimes Act") provides that when a person imposes an irregular sentence on a juvenile who has committed a specific violent crime, such as murder, the term shall not exceed 15 years and the short term shall not exceed seven years, notwithstanding the provisions of the above Act (Article 4(2)). Defendant 1 was prosecuted as a crime of murder and abandonment of body, and the first instance court convicted Defendant 1 who was under the age of 18 and was under the age of 18, on the ground that he was under the special provisions of Article 60(1) proviso to Article 60(2) of the Juvenile Crimes Act, which falls under the highest term of imprisonment and the short term shall not exceed 15 years and the short term shall not exceed 19 years prior to the lower court’s appeal.

2) The judgment of the court below

The lower court found Defendant 1 guilty of all the facts charged against Defendant 1, as in the first instance trial, but reversed ex officio the judgment of the first instance court on the ground that Defendant 1 was not a juvenile prior to the pronouncement of the lower court. Defendant 1 appealed only on the ground that only Defendant 1 appealed, and thus the principle of prohibition of disadvantageous alteration is applied. In accordance with the purport of the previous Supreme Court Decision (Supreme Court Decision 2006Do734 Decided April 14, 2006, etc.), where seriousness between the irregular term and the regular term of punishment is aggravated, the lower court sentenced Defendant 1 to seven years of imprisonment on the ground that it cannot be sentenced to imprisonment with prison labor exceeding seven years for the irregular term of imprisonment sentenced by the first instance court.

3) The prosecutor’s ground of appeal argues that the severity of the regular term sentence should be compared on the basis of the maximum term of the irregular term of punishment in the case of applying the principle of prohibition of disadvantageous alteration between the irregular term of punishment and the regular term of punishment. Thus, the court below should have determined the sentence on the basis of the maximum of 15 years, which is the maximum term of the irregular term of punishment sentenced

As in the instant case, in a case where a defendant was sentenced to an irregular sentence as a juvenile at the time of rendering a judgment of the first instance, and only the defendant should be sentenced to a regular sentence when he/she attains the age of majority, the appellate court may not sentence a regular sentence heavier than the irregular sentence sentenced in the first instance court in accordance with the principle of prohibition of disadvantageous alteration. In this case, it is a matter of how to determine the upper limit of a regular sentence sentenced by the appellate court. In other words, the issue of this case is how to set the standards for determining whether the appellate court should determine the violation of the principle of prohibition of disadvantageous alteration when the appellate court

B. Standard for determining whether the principle prohibiting disadvantageous changes was violated in an irregular term of punishment

1) In a case where only the Defendant lodged an appeal, the appellate court may not sentence a more severe punishment than that of the judgment of the first instance (Article 368 of the Criminal Procedure Act). Since the principle of prohibition of disadvantageous alteration is clear in the text of the law, which is the principle of prohibition of severe punishment, which is prohibited from any disadvantage in the sentence to be imposed, whether the sentence is disadvantageous ought to be objectively compared and determined with the sentence imposed (see, e.g., Supreme Court Decisions 9Do3776, Nov. 26, 1999; 2004Do6784, Nov. 11, 2004). In addition, whether the sentence imposed was modified disadvantageous to the Defendant ought to be determined on the basis of the severity of the sentence under the Criminal Act, not on the basis of individual and formally examining the sentence, but on the basis of the overall consideration of the order (see, e.g., Supreme Court en banc Decision 97Do1716, Mar. 26, 1998; 200Do14194.

The Juvenile Act provides that a juvenile shall be sentenced to an irregular sentence under Article 60(1) as a special measure with respect to criminal punishment in order to assist the sound growth of the juvenile, taking into account the unique characteristics of the juvenile who has abundant mental and physical development and are in a special mental condition following the formation of personality (see, e.g., Supreme Court Decisions 2014Do11586, Nov. 13, 2014; 2016Do7112, Jul. 27, 2016): Provided, “Juvenile” under Article 60(1) of the Juvenile Act refers to a person under the age of 19 as provided in Article 2 of the Juvenile Act, and whether it constitutes the case where a defendant who has been sentenced to an irregular sentence in the first instance reaches the age of 19 years prior to the pronouncement of the appellate court (see, e.g., Supreme Court Decisions 201Do11586, May 28, 2009; 207Do26717, supra).

However, on the other hand, an irregular sentence is a sentencing with the width of the prolonged and short term, whereas an irregular sentence is a sentencing with the form of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation.

Considering these legal principles comprehensively, it is reasonable to see that a regular term that can be evaluated as substantially equivalent to an irregular term is a sentence that is equivalent to the length of the irregular term and the short-term fixed term (for example, four years of imprisonment for a maximum term and three years of imprisonment for a short term of two years; hereinafter referred to as "interim term"). As such, the standard for determining whether the defendant violated the principle of prohibition of disadvantageous change when he reverses the irregular term sentence sentenced in the first instance trial and sentences a regular term of the punishment before the appellate court rendered the judgment shall be the middle of the irregular term and the short-term term. The detailed reasons are as follows.

A) Illegal sentence is imposed upon setting a maximum and short term (Article 60(1) main sentence of the Juvenile Act). Illegal sentence means “the maximum term from a short term to a long term” in the term of punishment, and only the fact that the sentence alone is likely to become final and conclusive as a subsequent enforcement sentence is determined to be more than a short term and less than a long term.

Meanwhile, Article 60(4) of the Juvenile Act provides, “The head of the agency executing the irregular sentence against a juvenile who has served a short term shall be entitled to terminate the execution of the sentence under the direction of the public prosecutor’s office having jurisdiction over the case where the performance of the sentence is deemed good and the correctional purpose has been achieved.” The defendant who has been sentenced to an irregular sentence is in a position likely to terminate the execution of the sentence after the lapse of the short term of the irregular sentence. Therefore, considering that the same regular term as the short term of the irregular sentence is more likely to be executed than the short term of the irregular sentence, taking into account the possibility of executing the sentence lower than the short term of the irregular sentence, it is apparent that the same regular term as the short term of the irregular sentence is more likely to be executed than the short term of the irregular sentence, it is apparent that there is a short term of the irregular sentence. Accordingly, it is apparent that there is a point at which it can be evaluated as substantially equivalent to the short term of the irregular term and the short term of

Ultimately, an irregular term type has the form of "breadth" and a regular term type indicates the form of "number". In order to compare the severity of the irregular term type and that of the irregular term type in conflict with such a nature, it is inevitable to compare the point and the regular term type with one point of the irregular term type having the width. As such, when the defendant reverses the irregular term type sentenced in the first instance court before the appellate court rendered a judgment and sets a new standard for determining whether the regular term type violates the principle of no disadvantageous change when the defendant reverses the irregular term type sentenced in the first instance court and sets a new regular term type, the issue is to specify which point between the prolonged term of the irregular term and the short term of the irregular term.

The principle of responsibility that punishment shall be based on the responsibility and proportional to the liability, and the principle of prohibition of disadvantageous alteration adopted to prevent the decline of exercise of the right to appeal due to concerns that the appellate court may be sentenced to a de facto disadvantageous punishment in the appellate trial. The key issue of this case is whether a certain degree of punishment from a short-term to a long-term sentence can be an appropriate standard in harmony between the principle of responsibility and the principle of prohibition of disadvantageous alteration. In other words, the appellate court's excessive restriction on the exercise of proper sentencing discretion in accordance with the principle of liability against a defendant who is no longer entitled to the Juvenile Act, thereby giving undue benefits to the defendant. However, in the case where only the defendant appealed, there is a problem of "the extent to determine whether it can be a standard in preventing the exercise of the right to appeal due to the risk that punishment heavier than the illegal sentence sentenced by the first instance court is sentenced," which is a matter of "the extent to determine whether the exercise of the right to appeal can be a standard for preventing the interruption of the right to appeal," and it is not a problem to determine the upper clarity of legal logic.

B) The principle of prohibition of disadvantageous change is a principle that the appellate court may not, in principle, sentence a more disadvantageous sentence than the sentence already sentenced, which was adopted to prevent the exercise of the right to appeal from being reduced due to the risk of being disadvantaged in the appellate court, not a principle that gives the most favorable result to the defendant notwithstanding changes in the situation after filing an appeal.

(See Supreme Court Decision 2005Do5822 Decided October 28, 2005, and Supreme Court Decision 2007Do3448 Decided July 13, 2007, etc.)

The special measures regarding criminal punishment prescribed by the Juvenile Act are prescribed to assist a juvenile to grow in a sound manner by emphasizing the condition of a juvenile, and it is not prescribed by understanding his/her age as a responsible factor or identifying the characteristics of the juvenile as a problem of responsibility (see, e.g., Supreme Court Decisions 91Do2393, Dec. 10, 191; 2016Do7112, Jul. 27, 2016). As such, in light of the purpose of Article 60(1) of the Juvenile Act, separately from the issue of liability, the special measures regarding criminal punishment, such as an illegal period, etc., prescribed by the Juvenile Act, with emphasis on the condition that the juvenile is a juvenile, are prescribed as a special measure regarding criminal punishment, and thus, it is reasonable to deem that special measures regarding criminal punishment, such as an illegal period, etc., as prescribed by the Juvenile Act, have been prepared to be reflected in the direction that is a juvenile in the direction of benefit of the defendant.

A defendant who was sentenced to an irregular sentence in the first instance trial before reaching the age of 19 may sufficiently recognize the circumstances that he/she would no longer be subject to criminal punishment, taking into account the condition that he/she is a juvenile, as he/she reaches the age of 19 prior to the appellate court’s sentence. Therefore, a defendant who has reached the age of 19 may exercise his/her right to appeal, thereby sufficiently predicting that he/she would be sentenced to the heavier punishment than the short term of the most favorable to the defendant. Moreover, the exercise of his/her right to appeal by the defendant may not be deemed to decline solely on the ground that he/she may be sentenced to a heavier punishment than the short term of the irregular sentence that is advantageous to the defendant. This is because even if the sentence of the irregular sentence that was sentenced in the first instance trial becomes final and conclusive, the defendant may be subject to the execution of the sentence even

Ultimately, even though a regular sentence that can be sentenced in an appellate trial is more severe than a short term of an irregular sentence, if the regular sentence is within the period during which the defendant can reasonably expect due to the confirmation of an irregular sentence, it is reasonable to view that the defendant can exercise his/her right to appeal based on reasonable judgment without threat of substantial disadvantages. In this regard, the defendant who was sentenced to an irregular sentence can expect that the execution of the sentence will be terminated by the prosecutor’s direction under Article 60(4) of the Juvenile Act with the same possibility from the time when the short term of the irregular sentence expires until the expiration of the long term of the punishment. As such, the long term and the short term of the irregular sentence conforms to the period of the execution of the sentence reasonably anticipated by the defendant who was sentenced to an irregular sentence.

If the appellate court can reasonably pronounce a fixed sentence only within the period of the execution of the sentence that the defendant can reasonably expect due to the confirmation of an irregular sentence, i.e., the period of the irregular sentence and the period of the short-term sentence, the defendant may exercise his/her right to appeal based on reasonable judgment without threat of substantial disadvantages. In addition, the appellate court may exercise its right to reasonable discretion in sentencing, taking into account the circumstances that the Juvenile Act does not apply to the act providing special measures regarding criminal punishment, taking into account the status of the juvenile, to the extent that the exercise of the defendant’s right to appeal is no longer obstructed. Thus, in full view of the purpose that the Juvenile Act adopts the irregular sentence system, the principle of responsibility, and the principle of prohibition of disadvantageous change, it is reasonable to deem that the intermediate of the irregular term and the short term

C) Unlike the foregoing, it is unreasonable to consider the period or short-term of an irregular term as the basis for determining whether the principle of prohibition of disadvantageous alteration was violated in an irregular term of imprisonment is unreasonable for the following reasons.

(1) The long-term or short-term term of an irregular sentence is not an appropriate standard for objectively comparing and determining whether a sentence has been substantially modified, depending on the seriousness of the sentence.

Inasmuch as setting the standard for determining the severity of a sentence sentenced is to objectively compare and determine whether the changed sentence, which is not a final purpose, is a means to objectively compare and determine whether it is a heavier punishment, rather than a final one, the severity of the sentence cannot be used as a means inappropriate for objectively comparing and determining the severity of the punishment by taking the name more than the rationality and feasibility of the logic. However, considering the following matters, considering the following matters, even though the long and short term are clearly specified in an irregular term, it is clearly revealed that the severity of the punishment cannot be objectively compared and determined based on the long or short term of the irregular term.

(A) Defendants A and B, who are juveniles, were indicted together with accomplices. Defendant A was sentenced to a maximum of five years of imprisonment at the first instance court, a short of three years of imprisonment at the first instance court, and Defendant B was sentenced to a maximum of five years of imprisonment at the first instance court and a short of one year of imprisonment at the first instance court. Defendants A and B appealed only before both Defendant A and B rendered an appeal, and all of them reached the age of 19 years prior to the pronouncement of the appellate court judgment. In this case, where the first instance court’s sentence imposed on Defendant A is objectively clear that the sentence imposed on the Defendant B is heavier than that imposed on the Defendant B. However, if the period of an irregular sentence is considered as the basis for determining the gravity of the punishment, the appellate court’s judgment is based on the determination of whether Defendant A and B violated the principle of no more than 5 years of imprisonment for both Defendants A and B. Ultimately, the first instance court’s punishment differs in gravity of the punishment is equally treated in the appellate court. Accordingly, taking the standard of an irregular sentence as an objective comparison and determination of the severity.

(B) Defendants A and B, who are juveniles, were indicted together with accomplices. Defendant A was sentenced to a maximum of five years of imprisonment at the first instance court, a short of one year of imprisonment at the first instance court, and Defendant B was sentenced to a maximum of three years of imprisonment at the first instance court and a short of one year of imprisonment at the first instance court. Defendants A and B appealed only before both Defendant A and B rendered an appeal, and all of them reached the age of 19 years prior to the pronouncement of the appellate court judgment. In this case, where the first instance court’s sentence imposed on Defendant A is more objectively obvious than that imposed on Defendant B. However, in a case where the short term of an irregular sentence is considered as the basis for determining the gravity of the punishment, the appellate court deems both Defendant A and B as the basis for determining whether Defendant A and B violated the principle of prohibition of light punishment against disadvantage. Ultimately, the first instance court is equally treated as both in the appellate court. Accordingly, it cannot be deemed that the gravity of the punishment is an appropriate means to objectively compare and determine the severity of the punishment.

Rather, as seen earlier, the severity of punishment can be objectively compared and determined in the same case, if it is based on the long-term and short-term intermediate sentences.

(A) In the case above (A) the first instance court’s sentence imposed on Defendant A is more objectively apparent than that imposed on Defendant B, and the appellate court ought to have a serious difference in the standard for determining whether Defendant A and B violated the principle of prohibition of disadvantageous alteration. In a case where the said sentence is based on the long-term and short-term intermediate punishment, the appellate court shall take four years [=5+3] / 2] of imprisonment for Defendant A, and three years of imprisonment for Defendant B [5 + (5+1)/2] as the standard for determining whether the respective principle of prohibition of disadvantageous alteration is violated.

(B) Even in the case above (B), since the first instance court’s sentence imposed on Defendant A is more objectively apparent than that imposed on Defendant B, the appellate court should also have a significant difference in the standard for determining whether Defendant A and B violated the principle of prohibition of warning against disadvantage. In a case where the standard for determining whether the principle of prohibition of warning against disadvantage is violated, the appellate court should take the basis for determining whether Defendant A and B’s imprisonment for three years (=5+1)/2], and two years (=3+1)/2) for Defendant B’s imprisonment for two years (=3+1)/2).

In the end, when the standard for the prolonged and short-term intermediate punishment is considered as the standard for the seriousness of the punishment, the defendant Gap and Eul, who are different in the first instance court in the seriousness of the punishment, shall be treated in accordance with the difference in the appellate court. Thus, taking the gravity of the punishment as the standard for the long-term and the short-term intermediate punishment as an appropriate means to objectively compare and determine the severity of

(2) If the standard is to determine whether the term of an irregular term is in violation of the principle of prohibition of disadvantageous alteration, the exercise of the defendant’s right to appeal is chilled, and the Juvenile Act does not fit the purpose of adopting the irregular term system, and does not achieve adequate harmony between the principle of responsibility and the principle of prohibition

In a case where the non-term sentence sentenced by the first instance court becomes final and conclusive as is, the execution of the sentence may be terminated prior to the arrival of the maximum term of the sentence pursuant to Article 60(4) of the Juvenile Act. In such a situation, if the appellate court can sentence the same period of the non-term sentence as that of the non-term sentence, the accused would be unable to exercise his right to appeal due to threat of substantial disadvantages even if it considers that there is a need for reasonable appeal. Considering the same issue as this case, considering the foregoing, if the accused who was sentenced to the non-term sentence with the "large term of 15 years imprisonment and short term of 7 years" in the first instance trial is likely to be sentenced by the appellate court for a period of 8 years or longer than that of the short term, the exercise of the right to appeal by the accused would be reduced.

Even when considering the circumstances that the Juvenile Act, which provides special measures concerning criminal punishment, is not applicable in cases where a defendant reaches the age of 19 prior to the pronouncement of a judgment in an appellate trial in which only the defendant appealeds, the appellate court may not sentence a sentence heavier than that sentenced by the first instance court, in consideration of the status of the juvenile. Nevertheless, in a case where only the defendant appealed, if the appellate court can pronounce a regular sentence the same as that of an irregular sentence clearly heavier than that of an irregular sentence, the appellate court is sentenced to a sentence heavier than that sentenced by the first instance court. This is clearly in violation of the principle of prohibition of disadvantageous alteration.

(3) If the standard is to determine whether an irregular short-term term violates the principle of prohibition of disadvantageous alteration, the exercise of the defendant’s right to appeal may rather be abused, and the Juvenile Act does not fit the purpose of adopting the irregular term system, and it cannot be in harmony with the principle of responsibility and the principle of prohibition of disadvantageous alteration.

In a case where the sentence of an irregular term, which was sentenced by the first instance court, becomes final and conclusive, the Defendant is likely to have executed the sentence in excess of the short term of an irregular term so long as the enforcement of the sentence is not completed pursuant to Article 60(4) of the Juvenile Act. In such a situation, if the appellate court can only sentence a regular term identical to the short term of an irregular term, it would result in a favorable consequence in exercising the right to appeal even if the Defendant deems that there is no need for reasonable appeal. In a case where the Defendant is sentenced to a regular term after reaching the age of 19 prior to the appellate court’s ruling, the Defendant cannot be subject to the Juvenile Act, which provides special measures regarding criminal punishment, taking into account the status of the Defendant, and thus, it is necessary to grant an appropriate discretionary power to impose reasonable sentencing in the appellate court, taking into account such circumstances. Nevertheless, if the appellate court can only sentence a limited term of an irregular term, which is clearly the same as the short term of an irregular term, this would only become final and conclusive in the appellate court.

Therefore, the aforementioned issues may arise when determining whether the defendant violated the principle of prohibition against disadvantageous alteration of punishment. This is unreasonable as it sets out the standards for prohibition against disadvantageous alteration adopted by the defendant to prevent the exercise of the defendant’s right to appeal from being reduced. Furthermore, the issue of this case is that the prosecutor’s appeal is determined based on the prosecutor’s free decision, and it is not a matter that can be drawn when the court determines whether the defendant violated the principle of prohibition against disadvantageous alteration. Article 368 of the Criminal Procedure Act provides that the principle of prohibition against disadvantageous alteration is applicable only to the case against which the defendant appealed and lodged an appeal on behalf of the defendant, and that the principle of prohibition against disadvantageous alteration is not applicable to the case where the prosecutor tried to make an appeal on the grounds of unreasonable sentencing in the first instance judgment. The issue of this case is that the principle that prohibition against disadvantageous alteration of punishment would be more unreasonable than the principle that prohibition against disadvantageous alteration of punishment would be applied only to the case where the prosecutor’s decision of prohibition against disadvantageous alteration of punishment would be in line with the principle of prohibition against disadvantageous alteration of punishment.

2) Ultimately, the issue of specifying a regular sentence that can be assessed as substantially equal to an irregular sentence is rather than an issue that can be clearly demonstrated clearly, rather than an issue that can be determined by the principle of liability, the principle of no disadvantage change, and the purpose of adopting the principle of no disadvantage change, comprehensively taking into account the purpose of adopting the irregular sentence system under the Juvenile Act, the issue is an assessment of whether there is a relative friendship as the standard for sentencing at an appropriate appellate court, which can prevent excessive restriction on the exercise of the right to appeal, appropriate for the principle of liability, which is the basic principle of criminal liability, and prevent the suspension of exercise of the right to appeal, at the same time. This is not an issue of “the degree of determining whether a certain degree of punishment exists between the short-term and the short-term period of an irregular sentence, one of which is the short-term or short-term, and is not an issue determined by the upper limit of a regular sentence. From this perspective, the issue of violation of the principle of no disadvantage change when changing an irregular sentence to a regular one can be seen as a relatively superior standard rather than the long-term or short-term sentence.

3) In contrast, Supreme Court Decisions 4286Mo14 Decided November 10, 1953; 4292Mo242 Decided August 21, 1959; 69Do114 Decided March 18, 1969; 2006Do734 Decided April 14, 2006, which held to the effect that in the event the seriousness between the irregular term and the regular term of punishment is aggravated by applying the principle of prohibition of disadvantageous change, all of the Supreme Court decisions, including the same purport, are to be modified to the extent that they are inconsistent with this Opinion.

C. Determination on the instant case

The court below reversed the judgment of the court of first instance which sentenced Defendant 1 to a maximum of 15 years of imprisonment with prison labor and a short of 7 years of imprisonment with prison labor on the ground that Defendant 1, who was a juvenile at the time of the judgment of the court of first instance, became an adult at the time of the judgment of the court of first instance, and sentenced Defendant 1 to seven years of imprisonment with prison labor on the ground that Defendant 1 cannot be sentenced to imprisonment with prison labor exceeding 7 years of a short term among the irregular period of imprisonment sentenced by the court of first instance in accordance with the principle of prohibition of disadvantageous alteration,

However, in light of the aforementioned legal principles, the standard of determining whether the court below violated the principle of prohibition of disadvantageous alteration in imposing a sentence instead of a maximum of 15 years of imprisonment sentenced by the court of first instance and a fixed term sentence instead of an irregular term of 7 years ought to be the mid-term imprisonment of 15 years and the short-term imprisonment of 7 years, namely, imprisonment of 11 years (=(15+7)/2).

Therefore, the court below erred by misapprehending the legal principles as to the prohibition of disadvantageous alteration, which affected the conclusion of the judgment, based on seven years of imprisonment with prison labor sentenced by the court of first instance. The prosecutor's ground of appeal pointing this out is with merit.

2. As to the Prosecutor’s ground of appeal on Defendant 2

Even in cases where a sentence of death penalty or imprisonment with or without prison labor for an indefinite term or for not less than ten years is imposed on a defendant, a prosecutor under the interpretation of Article 383 subparag. 4 of the Criminal Procedure Act may not claim the grounds for appeal that the sentence of the court below is too weak, or that the court below erred in the misapprehension of the rules of evidence against the defendant’s interest in finding facts premised on sentencing (see Supreme Court Decision 2018Do15035, Nov. 29, 2018)

Therefore, in this case where the court below sentenced the defendant 2 to 10 years of imprisonment, the prosecutor's ground of appeal that the court below's determination of punishment is too unjustifiable or erroneous in finding facts on the premise of sentencing is not acceptable.

3. Of Defendant 1’s grounds of appeal, the lower court convicted Defendant 1 of the facts charged against Defendant 1 on the grounds as indicated in its reasoning. 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 against logical and empirical rules, or by misapprehending the legal doctrine

4. As to Defendant 2’s ground of appeal

Examining various circumstances that form the conditions for sentencing, such as the Defendant’s age, character and conduct, environment, relationship with the victim, motive, means, and consequence of each of the instant crimes, the circumstances after the crime, etc., as indicated in the records, the lower court’s sentence of imprisonment with prison labor for not less than 10 years against Defendant 2 cannot be deemed extremely unfair, even in light of the circumstances asserted in

5. Conclusion

Therefore, without further proceeding to decide on the prosecutor’s assertion of unfair sentencing as to Defendant 1’s assertion of unfair sentencing and Defendant 1’s assertion of unfair sentencing, the part on Defendant 1 among the judgment of the court below is reversed and remanded to the court below for further proceedings consistent with this Opinion. The prosecutor’s appeal against Defendant 2 and the appeal by Defendant 2 are all dismissed. It is so decided as per Disposition by the assent of all participating Justices, except for a separate opinion by Justice Park Sang-ok, Justice Min You-sook, Justice Min You-sook, Justice Lee Dong-won, Justice Park Jung-hwa and Justice Kim Seon-

6. Concurring Opinion by Justice Park Sang-ok, Justice Min You-sook and Justice Lee Dong-won on the issues of this case

A. The majority opinion is reasonable to deem that a regular term sentence that can be assessed as substantially equivalent to an irregular term is the long-term and short-term fixed term, i.e., the intermediate term, when the defendant was sentenced as a juvenile at the time of a judgment of the court of first instance, and only the defendant appealed, in the case where only the defendant was declared as a juvenile at the time of a judgment of the court of first instance, and the defendant must reverse the irregular term sentence that the court of first instance sentenced as at the time of the judgment of the court of first instance and make a regular sentence, and the standard to determine whether the defendant violated the principle

However, in such a case, it is reasonable to determine whether a juvenile violates the principle of prohibition of disadvantageous alteration on the basis of a long-term term, not an intermediate sentence, rather than an irregular one, and therefore, the upper limit of a regular sentence that the appellate court may pronounce ought to be deemed to be the period of an irregular sentence sentenced by the first instance court. The reasons are as follows. (B) The Juvenile Act provides for special measures, etc. regarding criminal punishment in order to ensure the sound growth of juveniles by taking into account the characteristics of the juveniles who have abundant possibility of improvement and are placed in a special mental and physical condition due to mental development (see, e.g., Supreme Court Decision 2016Do7112, Jul. 27, 2016).

The Juvenile Act provides that where a juvenile commits a crime punishable by imprisonment for a maximum term of not less than two years as statutory penalty, a sentence for a limited term of imprisonment shall be imposed by setting a maximum and short term within the scope of such punishment (Article 60(1)); where it is deemed reasonable in light of the characteristics of the juvenile, the sentence may be mitigated (Article 60(2)); where a short term of imprisonment expires under the Juvenile Act, a decision of termination of execution may be made upon the decision of the penal execution agency (Article 60(4)); and where a short term of imprisonment is granted, a parole may be granted upon the lapse of 1/3 of the short term of imprisonment (Article 65). In addition, the Juvenile Act provides that the maximum term of imprisonment shall not exceed 10 years; where a juvenile is sentenced to an illegal term of imprisonment (proviso to Article 60(1)); where a defendant commits a specific violent crime, such as murder, the specific violent crime Act shall also apply to this case, but the maximum term of imprisonment shall not exceed 15 years;

However, the above special measures regarding criminal punishment under the Juvenile Act do not mean that the defendant is currently aware of the status that he/she is a juvenile, or that he/she is identified as a responsible element, or that the characteristic of the juvenile is not specified. Therefore, in order for the defendant to be subject to flexible and favorable provisions as above, it must be applicable to the juvenile at the time of trial. Even if the defendant was a juvenile at the time of rendering a judgment in the first instance trial, if the defendant was not a juvenile at the time of rendering a judgment in the appellate trial, the above provision cannot be applied. Thus, the appellate court has no choice but to reverse the judgment of the first instance which sentenced the non-scheduled sentence and to make a new regular sentence (see, e.g., Supreme Court Decisions 2013Do2935, Apr. 25, 2013; 2016Do7112, Jul. 27, 2016)

The issue of comparison between the irregular term and the regular term of punishment is no longer applicable to the Juvenile Act which was applied at the time of the judgment of the first instance, and the appellate court shall change ex officio the irregular term of the first instance court to the regular term of punishment. As the defendant appealed only by the defendant, the principle of prohibition of disadvantageous change is applied, and a regular term of punishment which is heavier than the irregular term of the first instance court cannot be sentenced. In such a case, interpretation is necessary to harmonize the legislative purpose of the Juvenile Act and the policy purpose of the principle of prohibition of disadvantageous change with the aim of the principle of prohibition of disadvantageous change. In addition, the fact that the defendant, who was sentenced to an irregular term of punishment in the first instance but is expected to become an adult during the appellate court, may not be subject to the provisions of the Juvenile Act in the appellate court. The relationship between the principle of balance between the irregular term of punishment and the crime and the principle

The principle of balance of punishment and punishment that should be balanced between crimes and punishment should be based on the responsibility and proportionality (see, e.g., Supreme Court Decisions 2018Do8438, Oct. 12, 2018; 2020Do8358, Sept. 3, 2020) are the basic principles of criminal liability (see, e.g., Supreme Court Decisions 201Do8438, Oct. 12, 2018; 2020Do8358, Sept. 3, 2

Unlike regular sentence, in the case of irregular sentence that determines and declares a long and short term in consideration of the characteristics of the juvenile who has abundant possibility of improvement, there may be a question of which correlation with the responsibility of the defendant. However, even if the irregular sentence system was introduced in consideration of not only the punishment against the juvenile, but also educational effects, the essence of the irregular sentence is still criminal punishment. In principle of responsibility, it is not possible to impose any penalty exceeding the responsibility of the defendant. In the case of the sentence of irregular sentence, deeming that the sentence that the responsibility of the defendant is short of the term can be imposed on the juvenile for the purpose of correction, and thus, it cannot be accepted. Thus, even if the period of irregular sentence is long, it

From this point of view, the maximum term of liability is meaningful. Therefore, it is reasonable to set the basis for the maximum term when comparing the severity between the irregular term of punishment. The Majority Opinion argues that it is unreasonable to apply the principle of prohibition of disadvantageous alteration on the basis of five years in total when Defendant A was sentenced to a more severe punishment in the event that Defendant B was sentenced for a maximum term of five years in imprisonment, three years in short term, five years in prison, and one year in the event that Defendant B was sentenced for a short term of one year in the event that Defendant A was sentenced to a more severe punishment. However, in addition to the case of Defendant C who was sentenced for a maximum term of four years in imprisonment and two years in short term, it is reasonable to assess that Defendant B was more severe in the case of the intermediate term of punishment on the same ground that Defendant B and C were sentenced for the same reason as the intermediate term of punishment, rather than having the maximum term of liability equivalent to the maximum

D. The principle of no disadvantage change in the method of applying the principle of no disadvantage change when changing an irregular term of punishment to a regular term of imprisonment is a system that arises from policy consideration to enable a defendant to exercise his/her right to appeal (see, e.g., Supreme Court Decision 2007Do3448, Jul. 13, 2007). Whether the sentence imposed in the application of the principle of no disadvantage change was modified disadvantageous to the defendant

Determination should be based on the severity of punishment under the Criminal Act, not on the basis of individual and form, but on the basis of whether it is practically disadvantageous to the defendant in consideration of the overall text of the order (see, e.g., Supreme Court Decision 2009Do12967, Feb. 11, 2010). Whether there is a concern that the exercise of the defendant’s right to appeal may de facto decline due to the possibility of change of punishment. Furthermore, such principle of prohibition of disadvantageous change should be applied in a way that accords with the legislative purport of the Juvenile Act, which prescribes that the Juvenile Act imposes an irregular sentence against the juvenile, and the principle

The sentence of an illegal term is determined with a maximum and short term (the main sentence of Article 60(1) of the Juvenile Act), and only the sentence of an illegal term, which is likely to become final and conclusive as a future enforcement sentence, is determined to be less than a short term. This is not possible to simply compare the seriousness of the illegal term and the regular term sentence due to the characteristics of the illegal term.

According to Article 60(4) of the Juvenile Act, the Majority Opinion, on the ground that a decision of termination of enforcement may be made by a decision of an intermediate sentence upon the lapse of a short term under Article 60(4) of the same Act, where an irregular sentence is pronounced, and the enforcement of the sentence is likely to be terminated before the expiration of the long term, is clear that the same regular sentence as the previous one is more severe than the irregular sentence. In such a logic, there is a regular sentence that can be evaluated as equal to the irregular sentence between the short term and the long term of the irregular sentence, and whether there is violation of the principle of prohibition of disadvantageous change by comparing the seriousness between the intermediate and the regular sentence, while the intermediate sentence constitutes the regular one. However, Article 60(4) of the Juvenile Act is only a discretionary provision that grants discretion to an intermediate enforcement agency. In accordance with the above provision, the possibility that the completion of enforcement of a long

Unless there are such special circumstances, the defendant is sentenced to punishment until a maximum period of time. Nevertheless, the majority opinion is based on the premise that the execution of punishment is completed prior to the expiration of a maximum period of time, and it is unreasonable to proceed with discussions in an uncertain state.

If it is impossible to simply compare the irregular term with the regular term, such as the majority opinion, the problem of applying the principle of prohibition of disadvantageous change when changing the irregular term to the regular term term is rather than the problem of finding a regular term that can be evaluated as substantially equivalent to the irregular term, and setting a reasonable standard so that the exercise of the defendant's right to appeal can not be avoided, rather than the problem of finding a regular term that can be evaluated as substantially equal to the irregular term, and the issue of setting the upper court's upper limit of the punishment sentenced by the appellate court. Furthermore, considering the characteristics of the irregular term that sets

E. As of July 24, 1958, the Juvenile Act enacted on July 24, 1958, stipulating that the term of imprisonment shall not exceed 10 years, and the term of imprisonment shall not exceed 5 years, and that the term of imprisonment shall also lead to the current law. Even if the Specific Crimes Act is applied to some crimes, the maximum term and the term of imprisonment shall be 15 years and 7 years, respectively. However, our society has experienced many changes and significant crimes, and various amendments were made to impose appropriate penalties that correspond to the responsibility for such crimes. The Criminal Act was amended on April 15, 2010, to raise the maximum term of imprisonment on a 30-year basis, and to raise the statutory penalty by 50 years if the punishment is aggravated.

Accordingly, there is a problem that the scope of a long-term and short-term punishment is excessively broad for juveniles who have committed a serious crime as a result of sentencing on a short-term and short-term basis corresponding to the upper limit of the Juvenile Act or the Specific Crimes Act. In a case where the Defendants of the similar age group jointly committed a crime, only some of the defendants constitute juveniles and are subject to the Juvenile Act, thereby causing imbalance in sentencing between them. In such a situation, if the Defendant, who was a juvenile in the first instance court, has reached an adult age in the appellate trial, it is reasonable to allow them to determine sentencing that conforms to their respective responsibilities in accordance with the same standard, in principle, at the appellate trial stage. Even in cases where only the Defendant appealed and only applies the principle of prohibition of disadvantageous change, these circumstances should be considered.

From this point of view, we agree with the majority opinion that if determining whether the principle of prohibition of disadvantageous change is violated based on the short-term period of punishment, it would be disadvantageous for the defendant to file an appeal, which might be abused by the defendant's right to appeal, the Juvenile Act does not fit the purpose of adopting the principle of liability and the principle of prohibition of disadvantageous change.

Furthermore, the Majority Opinion also agrees with the purport of the Majority Opinion that: (a) whether the exercise of the right to appeal is unlikely to decline because the regular sentence that the appellate court may decide is within the period of punishment reasonably anticipated by the Defendant; and (b) whether the Defendant’s liability is in breach of the principle of prohibition against disadvantageous alteration, based on the standard. However, according to such standard, the Majority Opinion differs from the Majority Opinion in that it is reasonable to determine the violation of the principle against disadvantageous alteration on the basis of a prolonged term, not the intermediate sentence, rather than the long-term sentence. The period of the execution of the sentence reasonably anticipated for the Defendant who was sentenced to irregular imprisonment falls within the period of ten years from 209 to 2018. According to the statistical data of the ten-year period from 2018, the decision on the termination of the execution of the sentence seems to have never been made during the above period. In addition, even in cases where the sentence was executed without a long-term sentence, barring any special circumstance, the execution of the sentence itself does not decrease, and the period of the sentence should be reasonably denied (see Article 66).

Meanwhile, Article 65(1) of the Military Service Act provides that "a person who is eligible to be transferred to supplemental service or to be transferred to wartime labor service and is prescribed by Presidential Decree as a convicted prisoner", and Article 136(1)1(a) of the Enforcement Decree of the Military Service Act provides that "in the event of sentence, the sentence is determined and sentenced for a prolonged term or a short term as an irregular term of imprisonment with or without prison labor for not less than 6 months but less than 1 year and 6 months", the meaning of the above convicted prisoner shall be specified as "a person sentenced to imprisonment with or without prison labor for not less than 6 months," and Article 136(

In the event that an irregular term is sentenced with a fixed period of time and a fixed period of time, deeming that the period of time falls under the type of liability accords with the principle of liability, and that it is appropriate as the standard for comparison of seriousness corresponding to the upper limit of liability.

In addition, it will be decided whether to file an appeal in consideration of the fact that the Juvenile Act is no longer applicable in the appellate court as the defendant who is expected to do so in the appellate court, and that the period of non-term sentence constitutes a responsible penalty and the period of non-term sentence can be enforced if it is finalized.

Therefore, in the case where the defendant was sentenced as a juvenile in the first instance court but the appellate court has to be sentenced to a regular sentence as an adult, the appellate court should determine whether the long-term period corresponding to the execution period reasonably anticipated by the defendant as a responsible type violates the principle of prohibition of disadvantageous change. It is reasonable to allow the appellate court to re-determine a proper sentence that meets the defendant's responsibility by exercising its discretion of sentencing as much as possible, such as taking into account both the characteristics of the illegal term and the long-term and short-term

In light of various circumstances, such as the purport of the principle of prohibition of disadvantageous change, criteria for determining disadvantage change, the purpose of the provisions of the Juvenile Act, the specific contents thereof, and the relationship between the principle of liability and the principle of no disadvantageous change, such conclusion cannot be said to violate the principle of no disadvantageous change.

F. Sub-decision

When comparing the severity of punishment according to the principle of prohibition of disadvantageous alteration between the irregular term and the regular term of punishment, it is reasonable to determine whether the principle of prohibition of disadvantageous alteration has been violated by comparing the period of the irregular term of punishment and the regular term of the irregular term of punishment. Therefore, the lower court determined whether the principle of prohibition of disadvantageous alteration was violated based on the short term, not the long term of the irregular term of punishment sentenced by the first instance court, and erred by misapprehending the legal doctrine as to the principle of prohibition of disadvantageous alteration, thereby adversely affecting the conclusion of the judgment. In so doing, it is so decided by the Majority Opinion, but it is with different reasons, and thus indicated in the Concurr

A. The majority opinion held that the court below erred by misapprehending the legal principles on the prohibition of disadvantageous alteration, which affected the conclusion of the judgment, in a case where the defendant was sentenced to an irregular term of imprisonment on the ground that the defendant was a juvenile at the time of the judgment of the court of first instance and was sentenced to an irregular term of imprisonment, and only the defendant appealeded by the court of first instance, the defendant should reverse the irregular term of imprisonment sentenced by the court of first instance prior to the judgment of the court of first instance and sentence a regular term of imprisonment. The standard for determining whether the principle of prohibition of disadvantageous alteration has been violated shall be the long-term and short

However, in applying the principle of prohibition against disadvantageous changes, in cases where the gravity between the irregular term and the regular term of punishment is aggravated, it was consistent opinion of the Supreme Court that the appellate court cannot sentence a punishment exceeding the irregular term of punishment in comparison with the irregular term of punishment (see, e.g., Supreme Court Decisions 4286Do14, Nov. 10, 1953; 4292Do242, Aug. 21, 1959; 69Do14, Mar. 18, 1969; 2006Do734, Apr. 14, 2006). Since the above opinion is reasonable, the grounds and conclusion of the majority opinion cannot be agreed. The reasons are as follows.

B. Grounds to determine whether the principle of prohibition of disadvantageous alteration was violated based on the short term of an irregular sentence

1) In a case where a defendant appealed and an appeal on behalf of the defendant, the appellate court may not sentence a more severe punishment than that of the original judgment (Articles 368 and 396(2) of the Criminal Procedure Act). The principle of prohibition of disadvantageous alteration is established from policy consideration to enable the defendant to exercise his right to appeal (see, e.g., Supreme Court Decision 2007Do3448, Jul. 13, 2007). Determination as to whether a sentence imposed is disadvantageous to the defendant in the application of the principle of prohibition of disadvantageous alteration should be based on the severity of criminal punishment under the Criminal Act, not on the basis of individual and formal basis, but on the basis of the overall order, on the basis of whether the sentence is substantially disadvantageous to the defendant (see, e.g., Supreme Court Decision 2009Do12967, Feb. 11, 2010). The principle of prohibition of disadvantageous alteration is not only the principle of unreasonable and unreasonable punishment between the two punishments, but also the alteration of the sentence before and after the final judgment should be determined based on the most unfavorable condition of the defendant.

2) The Juvenile Act provides for special measures regarding criminal punishment, etc. to help a juvenile grow up soundly by taking into account the characteristics of a juvenile who has abundant possibility of improvement in his/her character and physical and mental development (see, e.g., Supreme Court Decision 2016Do7112, Jul. 27, 2016). Accordingly, the Juvenile Act provides that where a juvenile commits a crime punishable by imprisonment for at least two years as statutory penalty, the term and short-term punishment shall be prescribed within the scope of such punishment (see, e.g., the main sentence of Article 60(1) of the Juvenile Act). Where an irregular sentence is pronounced, the possibility of the release or termination of the execution of a sentence against the defendant begins on the basis of a short-term sentence. The head of an agency executing irregular sentence against a juvenile falls under the category of imprisonment for a short-term sentence imposed by a prosecutor at the appellate court or ex officio before the expiration of the period of parole, and where it is deemed unreasonable that the defendant was sentenced to imprisonment for a short-term period exceeding one-term sentence (see Article 60(1).

3) This view is a firm attitude of the Supreme Court that has been over 70 years. As such, it is difficult to find a reasonable ground to change the comparison method of the previous precedents established as a standard to consider whether the defendant and prosecutor who have been sentenced to an irregular sentence for a long time and having determined whether to file an appeal. Therefore, it is unreasonable to the Concurring Opinion that it should be based on the majority opinion that it should be based on an interim sentence for an irregular term and that it should be based on the period that is disadvantageous to the defendant. The Concurring Opinion further undermines the principle of prohibition of disadvantageous change and the purport of the Juvenile Act as an interpretation unfavorable to

4) The Majority and the Concurring Opinion recognize that the exercise of the Defendant’s right to appeal is likely to be abused because it is unconditional to the Defendant if the Majority and the Concurring Opinion consider as a standard for determining whether the principle prohibiting disadvantageous alteration is violated. The Majority and the Concurring Opinion recognize that the principle prohibiting disadvantageous alteration is a major principle of the criminal law to prevent the exercise of the Defendant’s right to appeal. Nevertheless, the Majority and the Concurring Opinion should interpret that the principle prohibiting disadvantageous alteration, which is the major principle of the criminal law, is disadvantageous to the Defendant in order to prevent abuse of the Defendant’s right to appeal. This contradicts the fundamental purport of the principle prohibiting disadvantageous alteration. Moreover, as there is concern for the Majority and the Concurring Opinion to determine whether the principle prohibiting disadvantageous alteration is violated based on the short-term period of irregular punishment, it cannot be concluded that the exercise of the Defendant’s right to appeal would be abused. The Majority and the Concurring Opinion will not be concluded to have become final upon appeal by the Defendant. As such, the Prosecutor’s appeal may not be applied to the lower court’s appeal.

1) The Majority Opinion does not serve as an appropriate standard to objectively compare and determine the disadvantage of an irregular sentence depending on the severity of the punishment. As such, the Majority Opinion deems that the prolonged and short-term fixed term of an irregular term falls under a regular term that can be evaluated as substantially equivalent to an irregular term, i.e., the interim term, and that the gravity of the punishment based on such standard. However, it does not necessarily mean that all the objective weight of an irregular term can be computed formally, but there is no sufficient ground to recognize that the interim term can be assessed as substantially equivalent to the irregular term. It is difficult to view that the method is a point where one branch of the prolonged and short term of an irregular term are arbitrarily setting up and expressing the weight of the irregular term term, and that the method is superior to that of the previous precedents.

2) The Concurring Opinion states that the severity of punishment should be compared on the basis of the long-term execution, in general, on the grounds that the sentence is expected to be executed until the long-term period. The Concurring Opinion presents as the basis of statistical data according to practice of sentence execution, including that a decision on termination of sentence is almost not made with respect to juvenile inmates. However, such data alone does not confirm that the general estimated execution period against the defendant who has been sentenced non-term imprisonment has reached a long-term term. Nevertheless, comparison is the most unfavorable way to the defendant. Even if such execution is carried out, this is based on the operation of the Juvenile Act which provides that the practice of sentence execution is not only long-term but also short-term and needs to be considered in the enforcement of the Juvenile Act, so it is not reasonable to apply the principle of prohibition of disadvantageous change based on the long-term execution. Concurring Opinion emphasizes that there is possibility of executing the sentence within the long-term period, but it is difficult to accept that the possibility of release and termination of sentence should not be applied disadvantageously to the defendant.

3) The method of comparison with the Majority Opinion is inconsistent with the consistent position of the Supreme Court that applied the principle of prohibition against disadvantageous alteration to the probation. The Supreme Court has consistently held that the exclusion of the probation from the suspension of execution is a disadvantageous alteration with the sentence imposed by the judgment on the suspension of execution in relation to the application of the principle of prohibition against disadvantageous alteration to the probation (see, e.g., Supreme Court Decision 2016Do1131, Mar. 24, 2016). At the same time, the Supreme Court has consistently held that the suspension of execution is not permissible against the principle of prohibition against disadvantageous alteration against the disadvantage of the Supreme Court (see, e.g., Supreme Court en banc Decision 66Do1319, Dec. 8, 196; Supreme Court Decisions 201Do11700, Apr. 13, 2012; 2018Do9342, Jul. 24, 2019).

The Supreme Court’s above view can only be seen as contradictory to the principle of prohibition of disadvantageous change. This is because there is room to view that the Supreme Court’s opinion contradictory to the Supreme Court’s opinion is that one year and six months of imprisonment, and one year and six years of suspended sentence, which is disadvantageous to the defendant. However, deeming the inconsistency with the Supreme Court’s opinion is merely a misunderstanding of the principle of prohibition of disadvantageous change in the principle of objective and unreasonable order between two punishments. It is the one year and one year and six months of imprisonment, as well as one year and six years of suspended sentence, which is objectively unfavorable to the defendant. It is also a matter that cannot be decided objectively, and the principle of prohibition of disadvantageous change is not a consistent approach to this. If the Supreme Court considers the principle of prohibition of disadvantageous change to the defendant as a matter of principle, the above Supreme Court’s ruling should be sufficiently understood as being inconsistent with the principle of prohibition of disadvantageous change in the term of punishment, which is the most unfavorable to the defendant, even if the changed sentence is not invalidated or invalidated, it can be evaluated as invalid and void.

4) In principle, the principle of prohibition of disadvantageous change can only be applied to situations where it is difficult to resolve the principle of objectively comparing and determining the severity of punishment. ① A punishment for a maximum term of five years, three years, and one of the punishments for a short term of four years and six months, and one of the punishments for a short term of three years and six months, which is disadvantageous to the defendant? According to the Majority Opinion comparing both cases based on interim sentences, it is equal to four years in both cases. ① The alteration of a punishment to a sentence is equal to (2) or (2) the alteration of a punishment to a sentence is contrary to the principle of prohibition of disadvantageous change. According to the Concurring Opinion comparing a long term with a long term of three years, ① the alteration of a punishment to a punishment to a sentence is superior to (2) the alteration of a punishment to a sentence is contrary to the principle of prohibition of disadvantageous change, but ② the alteration of a punishment to a sentence to a long term or a short term is contrary to the principle of prohibition of disadvantageous change if there is any unfavorable change to the defendant.

(d) Relation to the principle of responsibility.

1) The principle of balance of crimes and the principle of accountability that a reasonable balance between crimes and punishment should be established is based on the responsibility and proportionality (see, e.g., Supreme Court Decisions 2018Do8438, Oct. 12, 2018; 2020Do8358, Sept. 3, 2020).

2) In a case where an irregular sentence is pronounced, the sentence of the entire section ought to be deemed to be within the scope of the punishment that conforms to the responsibility. This is because, instead, if only one of the branches serves as a punishment that is consistent with the responsibility, the entire section, excluding the specific branch, will be considered as a punishment that does not fit the responsibility. In such a case, the sentence of a punishment for a section that does not fit the responsibility would in itself go against the principle of the balance of crimes and the principle of the responsibility. Since the short-term sentence also falls within the scope of the punishment that is proportional to the liability, the standard of the short-term sentence is entirely an issue in relation to the principle of the responsibility.

3) In applying the principle of prohibition against disadvantageous change, only a regular sentence with the upper limit of a short term can be deemed as an unfair result not scheduled under the Criminal Procedure Act in relation to the principle of liability. Imposition of a penalty exceeding the responsibility to the accused is not permissible pursuant to the principle of liability. However, there is no choice but to impose a heavy restriction on the accused in accordance with the principle of prohibition against disadvantageous change. This is a natural consequence following the adoption of the principle of prohibition against disadvantageous change. If only the accused appeals, the appellate court cannot impose an additional indictment to add the criminal facts constituting the inclusive crime at the appellate court, or even if the victim who suffered fatal injury was changed with the lower limit of the Defendant’s liability due to the change of the indictment, the appellate court cannot impose a sentence heavier than the sentence of the first instance judgment (see, e.g., Supreme Court Decisions 79Do2105, Mar. 25, 1980; 2014Do4271, Aug. 20, 2014).

E. The prosecutor’s prohibition of disadvantage change is not applicable to all cases of appeal by the defendant, but is applicable only to cases of appeal by the defendant or appeal only by the defendant for the defendant. In the event a prosecutor files an appeal against the defendant, the principle of prohibition of disadvantage change is not applicable, and it is possible to change a sentence heavier than that of the first instance court in the appellate court. In this regard, it is inappropriate to discuss whether the principle of prohibition of disadvantage change is a factor impeding the proper operation of criminal justice

In the foregoing example cases, a prosecutor may file an appeal to correct errors in the first instance court by excluding the application of the principle of prohibition of disadvantageous change, and to sentence sentence that meets the defendant's responsibility. The Criminal Procedure Act has been designed in such a way as to guarantee the exercise of the defendant's right to appeal through the principle of prohibition of disadvantageous change through the prosecutor's decision while imposing punishment that meets the defendant's responsibility on the appellate court through the prosecutor's decision. Since applying the principle of prohibition of disadvantageous change based on the short-term period was established in the Supreme Court, the defendant may decide on whether to file an appeal accordingly, if it is reasonable in the appellate court that the defendant is sentenced to a regular sentence exceeding the short-term period, the prosecutor must review and appeal. The failure of the prosecutor in this case is deemed to be due to the fact that the appellate court did not have the intention to accept the sentence even if the defendant was sentenced to a regular sentence equivalent to the short-term sentence, or the prosecutor did not have the firm view of the Supreme Court's decision. However, it is clear that the Supreme Court's established precedents for the benefit of the defendant's decision should be ruled to be justified.

F. Sub-decision

For the foregoing reasons, the judgment of the court below which determined the sentencing against Defendant 1 by applying the principle of prohibition of disadvantageous alteration based on the short term of the irregular sentence sentenced in the court of first instance is justifiable, and there was no error in misapprehension of the legal principles on the principle of prohibition of disadvantageous alteration thereto. In this regard, the Supreme Court’s withdrawal of the legal principles established near 70 years with respect to the principle of prohibition of disadvantageous alteration, which is one of the important principles in order to guarantee the defendant’s right by using the dynamic logic in relation to the issues of this case, and the majority opinion that damages the purpose

8. Concurrence with the Majority by Justice Lee Ki-taik

A. In a case where determining whether there was a violation of the principle of prohibition of disadvantageous change between an irregular term and a regular term, solely on the ground that it was the position of the Supreme Court near 70 years, it cannot be concluded that such a determination has validity as a legal doctrine appropriate to regulate the social situation at the present time. In order for the Supreme Court to be recognized as still valid legal doctrine even before a long-term period of time, it is necessary to undergo the process of continuously analyzing and re-maid validity in the process of changing the social structure and changing the people’s awareness. These processes, only repeated Supreme Court’s determination through such process is reasonable as a consistent legal doctrine with this period of time. However, the Supreme Court’s position on the standard of determining whether there was a violation of the principle of prohibition of disadvantageous change in the irregular term is unreasonable in academia or practice, and it is not verified the validity of such a long-term term term sentence through the criticism and the process of re-election. Thus, the Majority Opinion has to have relatively maintained the legal order relatively from the point of view of establishing the present long-term term type of punishment not before 70 years.

B. As the situation where a harmonious legal order should be formed between a large number of interests or norms, we need to take into account what is the essence of the problem. In practice, without considering it, we tend to approach the problem as a matter of simple bilateral choice by focusing only on the clarity of grounds for appeal. It is not desirable to resolve the issue of this case as a matter of bilateral choice. If the issue of this case is considered as a matter of bilateral choice, the resolution can be relatively simple, and the majority opinion that it should be the basis for the prolonged and short term punishment.

However, there is no choice but to have diverse views and evaluations in accordance with the way of approaching or analyzing interests or norms at a large number of stages. As such, one party can not answer 'probly' or 'probly'. The Majority Opinion seeks to find a better answer, not only taking the essence of such issues without prejudice, but also taking a simple approach to the point of view that is to establish harmonious legal order among many interests in the past, there is an example presented to the majority opinion. In the process of enactment of the Civil Execution Act, there is a need to recognize priority of creditors when determining dividend rates among the general creditors. It is more reasonable to consider that the right to receive dividend should not be granted to creditors first of all, and that it should not be given 0% of the non-permanent interpretation of the Civil Procedure Act as one of the following reasons: 0% of the non-permanent interpretation of the law; 1.0% of the non-permanent interpretation of the law should not be given to the creditor; 20% of the non-permanent interpretation of the principle of equality; 3.

1) The principle of prohibition of disadvantageous alteration is to determine whether a sentence imposed in the appellate court is a heavier punishment, by objectively comparing the severity of the punishment existing between the original judgment and the sentence sentenced in the appellate court. As such, objectively comparing the severity of the punishment existing in the appellate court and the sentence sentenced in the appellate court ought to be inevitably accompanied in applying the principle of prohibition of disadvantageous alteration. The Dissenting Opinion and the Concurring Opinion’s position view the principle of prohibition of disadvantageous alteration is to the purport that there is no correlation between the principle of prohibition of disadvantageous alteration and the principle of prohibition of disadvantageous alteration, which prescribes the principle of prohibition of disadvantageous alteration. This is inconsistent with the language and text of Article 368 of the Criminal Procedure Act

2) The Dissenting Opinion refers to the Supreme Court precedents that judged whether a sentence is disadvantageously changed between a sentence and a suspended sentence, and argues that the Majority Opinion is inconsistent with the Majority Opinion’s position. However, whether a sentence is disadvantageously changed or not should be determined based on the order of the Supreme Court, and it should not be determined based on the circumstances unpredictable in the future without the judgment of the appellate court. Where a sentence is finalized, in principle, the Defendant is deprived of the freedom of body by the sentence sentenced, while a suspended sentence becomes final and conclusive.

As a matter of principle, the Defendant does not deprive the Defendant of his freedom of body by the sentence sentenced. In conclusion, determination based on the sentence sentenced, the sentence ought to be considered as a more disadvantageous sentence to the Defendant than that of the suspended sentence. In the first instance court, it is difficult to present the case of filing an appeal on the grounds that the sentence of the suspended sentence is excessive. Moreover, the fact that the Criminal Act provides for the invalidation and cancellation of the suspended sentence is an erroneous act for which the Defendant is responsible. In this respect, the inclusion of the standard for determining the seriousness of the sentence in the outcome derived from the erroneous act chosen by the Defendant ought to be deemed as giving unreasonable benefit to the Defendant. Accordingly, the Supreme Court’s precedent pointing this out by the Dissenting Opinion is questionable, and thus, it is difficult to accept to assert that there is error in the Majority Opinion on the grounds

E. As examples of the instant case, among the punishments existing between the 15-year period of the non-permanent sentence sentenced by the first instance court and the 7-year period of the 11-year period of the 7-year period, only the 11-year period of the 11-year period of the 3-year period of the 3-year period of the 3-year period of the 3-year period of the 3-year period of the 3-year period of the 4-year period of the 3-year period of the 3-year period of the 5-year period of the 15-year period of the 15-year period of the 3-year period of the 3-year period of the 14-year period of the 5-year period of the 3-year period of the 5-year period of the 10-year period of the 10-year period of the 11-year period of the 11-year period of the 3-year period of the 14 year period of the 14 year period of the

In order to terminate the execution of a sentence against a defendant sentenced to an illegal sentence, a prosecutor’s decision is necessary to determine that the performance of the sentence has good results and the purpose of correction has been achieved (Article 60(4) of the Juvenile Act). The Majority Opinion argues that, on the premise that the system of termination decision of the execution of the sentence as provided by the Juvenile Act is being operated in compliance with its purpose, it is appropriate to view that the period of the execution of the sentence that can reasonably be anticipated for the defendant sentenced to an illegal sentence falls under the period of non-term and short-term intermediate punishment by taking into account all the factors involved in the decision of the termination of the execution of the sentence, and that it is appropriate to regard that the period of the execution of the sentence falls under the period of non-term and short-term intermediate punishment, which can be reasonably anticipated for the defendant being sentenced to an illegal sentence, through statistical data from 2009 to 2018, and that the average rate of the sentence without parole among the juvenile sentenced persons is 60.21%, and thus, it is difficult to find the legislative purpose of the Juvenile Act.

In the end, the period of execution of a sentence that can reasonably be expected by the defendant who has been sentenced to an illegal sentence should be evaluated in a balanced manner by taking into account the factors such as ‘sexuality of the defendant' and ‘the discretionary judgment of the prosecutor's. From this perspective, it is more appropriate to evaluate that the defendant who has been sentenced to an illegal sentence may be expected to have completed the execution of the sentence by the prosecutor's discretionary judgment on the same possibility from the time when the short term of the illegal sentence has lapsed to the time when the long term of the punishment has arrived.

F. Even if educational elements are strong, the essence of an irregular sentence is punishment. In addition, in light of the variability of juveniles, it is reasonable to exercise legislative discretion so that it does not have difficulty in setting appropriate punishment within the limit of the principle of responsibility, which is the basic principle of criminal justice. In addition, the specific violent crime law applicable to this case is related to situations that occur in the future, and it is impossible for the fact-finding court that declares an irregular sentence, to accurately predict it at the time of the sentence. The fact-finding court that declares an irregular sentence, has excessively limited to the elements of correction purpose, and has determined an excessive range from an irregular sentence to a short-term term. In the same regard, in a case where the law regulating the maximum and short-term punishment is enacted and amended, it is reasonable to exercise legislative discretion so that the fact-finding court does not have difficulty in setting appropriate punishment within the limit of the principle of responsibility, which is the basic principle of criminal justice. This is not only the maximum period of punishment against juveniles who committed specific violent crimes, such as murder (long-term 15 years and the maximum period between 7 years).

G. Meanwhile, although there is no direct relation with the instant case, I would like to point out the situation in which the principle of prohibition of disadvantageous alteration cannot work properly in other aspects to which the principle of prohibition of disadvantageous alteration is applied.

Supreme Court en banc Order 2016.6. 16. 16. 2016. 1. The majority opinion held that “The above en banc Order 1016. 1. 1. 1. 1. 1. 1. 1. 1. 2. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 2. 2. 3. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 2. 1. 1. 1. 1. 1. 1. 2. 1. 2. 2. 3. 3. 3. 3. 2. 3. 3. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 2. 3. 2. 2. 2. 2. 2. . . 3. . . . . 2. . . 3. . . . . . . . . . .... 2. .... ................ .... . ............ ................ . ............ ................................................... .........................................................................................................................................................................................................................................................................................................................................................

The Chief Justice of the Supreme Court

Justices Park Sang-ok

Justices Lee Dong-won

Justices Kim Jae-in

Justices Park Il-san

Justices Noh Jeong-chul

Justices Min Min-young

Justices Kim In-bok, Counsel for the defendant

Justices Lee Jae-hwan

Justices Noh Jeong-hee

Justices Kim In-bok