2020Do49 Special thief, Special thief, thief, thief

A

Defendant

Attorney Lee Dong-hwan (Korean)

Ulsan District Court Decision 2019No1229, 1232 decided April 2, 2020

June 25, 2020

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

Judgment ex officio is made.

1. Article 457-2(1) of the Criminal Procedure Act provides that “No sentence more severe than that imposed on a case for which a defendant has requested formal trial shall be imposed” (Article 457-2(1) provides that “The principle prohibiting the above type of punishment shall apply to the case for which a formal trial has been requested.” The principle prohibiting the above type of punishment applies to the case for which a formal trial has been requested even in cases where the defendant is placed under concurrent crimes after the combination and examination of other cases (see Supreme Court Decision 2019Do15700, Jan. 9, 2020).

2. The record reveals the following facts.

A. On November 7, 2019, the Ulsan District Court found the Defendant guilty of special larceny, special larceny, special larceny, and larceny, and sentenced one year and six months of imprisonment and confiscation.

B. On May 10, 2018, the Daejeon District Court rendered a summary order of KRW 3 million against the Defendant’s obstruction of exercising his/her right, and thereafter, rendered a summary order of KRW 20 million against the Defendant’s obstruction of exercising his/her right, which was later accepted the Defendant’s request for the recovery of formal trial (hereinafter “Class 2”) on September 23, 2019, the said Court rendered a sentence of KRW 3 million against the said crime.

C. On April 2, 2020, the court below reversed all of the judgment of the court of first instance on the grounds that the appeal case of the first case and the second case were combined, and found guilty of each of the above crimes, and sentenced the defendant to imprisonment with prison labor for the remaining crimes except for special larceny, and sentenced him to imprisonment with prison labor for one year and six months and six months within the applicable sentencing range.

3. Examining the above facts in light of the legal principles as seen earlier, since the case of the second case is a case for which only the Defendant requested formal trial, the sentence of imprisonment with prison labor, which is more severe than a fine for a summary order pursuant to the principle prohibiting the raise of punishment, shall not be imposed. This also applies in the case of the second case, even if the appellate court concurrents and examines the first case with the first case and treats the second case as concurrent crimes. Nevertheless, the lower court selected imprisonment with prison labor, which is more severe than a fine for a summary order as to the second case, and sentenced one of the crimes of the first case through heavy concurrent crimes, and sentenced one imprisonment with prison labor. In so doing, the lower court erred by misapprehending the principle prohibiting the raise of punishment prescribed in Article 457-

4. Therefore, without further proceeding to decide on the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-sik, Counsel for the defendant

Justices Min Min-young

The chief Justice Justice shall mobilized

Justices Noh Tae-ok