[1] Where Article 14(2) of the Medical Treatment and Custody Act provides for "the legal fiction of appeal concerning medical treatment and custody cases" (=when there is a benefit of appeal)

[2] The case holding that the court below erred by misapprehending the legal principles as to the legal fiction of an appeal under Article 14(2) of the Medical Treatment and Custody Act in a case where the first instance court's case which declared a violation of the Toxic Chemicals Control Act, such as imprisonment of one year and six months, confiscation, and medical treatment and custody was appealed on the ground of unfair sentencing, and the court below reversed the defendant's case among the judgment of the court of first instance, and did not make any decision as to the medical treatment and custody claim while sentencing two years of imprisonment and forfeiture

[1] Article 14(2) of the Medical Treatment and Custody Act provides that "when an appeal or waiver or withdrawal is filed against a judgment on a defendant case, an appeal or waiver or withdrawal of an appeal shall be deemed to exist with respect to a judgment on the medical treatment and custody case concerned." However, the aforementioned provision on the medical treatment and custody case concerned shall be deemed to apply to a judgment on the medical treatment and custody case concerned when there is a benefit in filing

[2] The case holding that the court below erred by misapprehending the legal principles as to appeal under Article 14 (2) of the Medical Treatment and Custody Act in the judgment of the court of first instance, which rejected the defendant's case among the judgment of the court of first instance and declared a two-year imprisonment and confiscation and did not make any judgment on the claim for medical treatment and custody when it sentenced the defendant to a two-year imprisonment with prison labor, on the grounds of the violation of the Toxic Chemicals Control Act, etc., and even if only the prosecutor appealed on the ground of unfair sentencing only the prosecuted case of the judgment of the court of first instance, the prosecutor can make an appeal for the defendant's interest as well as the disadvantageous appeal to the defendant. In this case, the court below should have ordered the judgment of the case for medical treatment and custody claim under Article 14 (2) of the Medical Treatment and Custody Act on the ground that there is an appeal for the judgment of the court of first instance on the medical treatment and custody claim at the same time as the judgment of the defendant case.

[1] Article 14(2) of the Medical Treatment and Custody Act / [2] Articles 12(2) and 14(2) of the Medical Treatment and Custody Act; Articles 43(1) and 58 subparag. 3 of the Toxic Chemicals Control Act; Article 283(1) of the Criminal Act; Articles 2(1)1 and 3(1) of the Punishment of Violences, etc. Act

Defendant

Defendant and Applicant for Medical Treatment and Custody

Attorney Park Young-ap

Seoul High Court Decision 2011No879, 2011No22 decided May 20, 201

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Defendant case;

According to the records, only the prosecutor of the first instance judgment appealed on the ground of unfair sentencing. The argument that the court below erred in the misapprehension of legal principles as to mental and physical disability is a legitimate ground for appeal or that the court below did not consider it as an object of judgment ex officio. Thus, it cannot be a legitimate ground for appeal.

In addition, according to Article 383 subparagraph 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is allowed only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for more than ten years has been imposed. Thus, in this case where a more minor sentence has been imposed on the defendant, the argument that the amount of punishment is unreasonable cannot be

2. As to the medical treatment and custody claim

Article 14(2) of the Medical Treatment and Custody Act provides that “When a defendant files an appeal against a judgment or waives or withdraws an appeal against a judgment on a case, a judgment on a medical treatment and custody application case shall be deemed to have been filed, and waiver or withdrawal of an appeal shall also be deemed to have been filed, with respect to the judgment on the medical treatment and custody application case.” However, it is reasonable to deem that the aforementioned provision on the legal fiction of an appeal concerning medical treatment and custody application case applies at the time of appeal with respect to the medical treatment and custody application case

According to the records, the defendant, in the first instance court, was sentenced to imprisonment for a year and six months, confiscation, and medical treatment and custody due to a violation of the Toxic Chemicals Control Act, etc., and appealed on the ground of unfair sentencing only by the prosecutor on the first instance judgment. The court below accepted the prosecutor's allegation of unfair sentencing, and reversed the defendant's case among the first instance judgment, and did not make any judgment on the medical treatment and custody claim while sentencing two years and confiscation against the defendant.

We examine these measures of the court below in light of the above provisions and legal principles.

In the first instance court, the judgment citing a request for medical treatment and custody along with the conviction of a prosecuted case, and even if only the prosecutor appealeds on the ground of unreasonable sentencing only for the prosecuted case of the first instance court, the prosecutor may file an appeal for the benefit of the defendant, not only disadvantageous appeal to the defendant, and thus, it cannot be said that

Therefore, in such cases, the court below should have sentenced the defendant's case at the same time with the judgment of the defendant's case in which the medical treatment and custody claim is filed in accordance with Article 14 (2) of the Medical Treatment and Custody Act.

Nevertheless, the court below omitted the judgment and sentence on the medical treatment and custody application case. The court below erred by misapprehending the legal principles on the legal fiction of appeal under Article 14(2) of the Medical Treatment and Custody Act, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)