[1] The meaning of the principle of prohibition of disadvantageous alteration under Article 457-2 of the Criminal Procedure Act and the method of determining whether to change disadvantage

[2] The method of determining whether to change disadvantage in a case where a formal trial is requested upon notification of a summary order and another case in which a public prosecution is instituted are consolidated and examined, but not guilty of other cases is pronounced

[3] The case holding that the judgment of the court of first instance erred in violation of the principle of prohibition of disadvantageous alteration as stipulated in Article 457-2 of the Criminal Procedure Act, in a case where: (a) the defendant appealed only from the court of first instance to the court below that found him not guilty of all the facts charged in the other case and part of the facts charged in the other case; and (b) the remaining facts charged in the "the other case" found him guilty and sentenced him to a fine of three million won; and (c) the judgment of the court of first instance, which decided that the defendant violated the principle of prohibition of disadvantageous alteration as stipulated in Article 457-2 of the Criminal Procedure Act

[1] The principle of prohibition of disadvantageous alteration provided for in Article 457-2 of the Criminal Procedure Act is to guarantee the defendant's right to claim a formal trial against a summary order. In a case where the defendant has requested a formal trial, the court shall not sentence more severe punishment than that of the summary order notified by the defendant on the same criminal facts. In such application, the severity of the punishment should not be examined individually and formally, but it should be determined whether it has been substantially changed to the defendant's disadvantage considering the whole order.

[2] In a case where a request for formal trial is brought into concurrent crimes after the case is joined and examined with another case, the punishment of a summary order notified in relation to the relevant case shall not be simply compared with that of a concurrent crime, but shall be determined whether the combined and adjudicated sentence is disadvantageously changed by considering, in whole and in substance, objective circumstances that determine the legal status of a defendant, such as the statutory punishment for the combined other case and the sentence, as a result of the combination and examination, by examining the whole and substantial circumstances that determine the legal status of a defendant. However, in a case where, as a result of the consolidation and examination, not guilty of other cases, the relevant case is deemed concurrent crimes and where a sentence is pronounced only for the relevant case, it is not necessary to consider the objective circumstances that determine the legal status of a defendant, such as the statutory punishment for other cases and the sentence, and therefore, it should be determined whether the punishment of the summary order notified in relation to

[3] The case holding that the judgment of the court of first instance, which ordered a summary order of KRW 1,50,00,00 for a formal trial upon being notified of the summary order, was erroneous in violating the principle of prohibition of disadvantageous alteration as stipulated in Article 457-2 of the Criminal Procedure Act, since it is obvious that the original defendant was sentenced to more severe punishment than that of the summary order, and thus, it violated the principle of prohibition of disadvantageous alteration as stipulated in Article 457-2 of the Criminal Procedure Act, in case where the court of first instance, which decided that two cases are concurrent crimes and sentenced to a fine of KRW 9,00,000,000,000,000,000,000,000,000,000 won, which was appealed by only

[1] Article 457-2 of the Criminal Procedure Act / [2] Article 457-2 of the Criminal Procedure Act / [3] Articles 368 and 457-2 of the Criminal Procedure Act

[1] [2] Supreme Court Decision 2004Do6784 Decided November 11, 2004 (Gong2004Ha, 2067) Supreme Court Decision 2005Do5105 Decided August 25, 2006

Defendant 1 and one other

Defendants

Seoul Central District Court Decision 2009No232 Decided September 10, 2009

The conviction part against Defendant 1 among the judgment below is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court. Defendant 2’s appeal is dismissed.

1. Defendant 1’s grounds of appeal are examined.

The principle of prohibition of disadvantageous change provided for in Article 457-2 of the Criminal Procedure Act intends to guarantee a defendant's right to request formal trial against a summary order. In a case where a defendant has requested formal trial, the court shall not pronounce more severe punishment than that of the summary order notified by the defendant for the same criminal facts. In its application, the severity of punishment shall not be examined individually and formally, but shall be determined as to whether the defendant has changed substantially against the defendant considering the whole text. Furthermore, in a case where a defendant requests formal trial after a consolidation or examination with another case, the punishment of the summary order notified in relation to the case shall not be simply compared with the punishment of the defendant, and where the defendant is faced with concurrent crimes after the consolidation or examination of the case, it shall be determined whether the punishment of the defendant was altered disadvantageously by considering the objective circumstances determining his legal status, such as the statutory punishment for the combined case and the sentence, and it shall be determined whether the punishment of the defendant has been altered by considering the objective circumstances of the defendant's original decision, as a whole, by comparing the case with the one of the Supreme Court Decisions 2004Do675.

According to the records, the court of first instance, after combining and examining the case of 2006Ka-Ma1834 (hereinafter “the case in question”) and the case of 2006Ka-Ma2783 (hereinafter “the case in question”) on which the defendant requested a formal trial after being notified of a summary order of 1.5 million won, sentenced the case in question to a fine of 9 million won by treating the other case as concurrent crimes. The court of first instance, which only the defendant appealed, acquitted the whole facts charged in other cases and part of the facts charged in the case in question, and sentenced to a fine of 3 million won. In light of the above legal principles, it is apparent that the court below imposed a heavier penalty than that of the summary order originally notified by the defendant in question, and thus, it is erroneous in the misapprehension of the principle of prohibition of disadvantageous alteration as provided in Article 457-2 of the Criminal Procedure Act, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit.

2. We examine Defendant 2’s appeal.

Defendant 2 did not submit a statement of grounds for appeal within the statutory period, and the petition of appeal does not include the grounds for appeal.

3. Therefore, the part of the judgment of the court below against Defendant 1 is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. Defendant 2’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Nung-hwan (Presiding Justice)