Whether the principle prohibiting the raise of punishment in the case of a request for formal trial as provided in Article 457-2 (1) of the Criminal Procedure Act applies as it is to the case where a defendant requests formal trial and the case where a defendant is subject to concurrent crimes after consolidation and examination (affirmative)

Article 457-2(1) of the Criminal Procedure Act provides that “No sentence more severe than that imposed on a summary order shall be imposed on a case for which the defendant has requested formal trial.” The principle of prohibition on raising the punishment is set forth in the case for formal trial. The above principle of prohibition on raising the punishment applies as it is to the case for which the defendant has requested formal trial and the case for which the defendant has requested formal trial is placed under concurrent crimes after consolidation and examination.

Article 37 of the Criminal Act, Article 457-2(1) of the Criminal Procedure Act

[Plaintiff-Appellant] 2019Do15700 decided Jan. 9, 2020 (Gong2020Sang, 510)

Defendant

Defendant

Attorney Kim Jong-hoon

Seoul Central District Court Decision 2019No2969, 3280 Decided December 12, 2019

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

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 punishment shall be set forth in the case for which a formal trial has been requested.” The above prohibition principle applies to the case for which a formal trial has been requested even in cases where a defendant is placed in concurrent crimes after the combination and examination of a case for which a formal trial has been requested and other cases are placed in concurrent crimes (see Supreme Court Decision 2019Do15700, Jan. 9, 2020).

2. The record reveals the following facts.

A. On September 5, 2019, the Seoul Central District Court found the Defendant guilty of each of the crimes of fraud, injury, and interference with business, and sentenced one year and two months of imprisonment.

B. On November 26, 2018, the Seoul Central District Court rendered a summary order of KRW 3 million with respect to the Defendant’s assault and insult, and subsequently rendered a fine of KRW 2 million with respect to the above crimes on September 26, 2019, which was accepted by the Defendant’s request for the recovery of the formal trial (hereinafter “second case”), and sentenced to a fine of KRW 3 million with respect to each of the above crimes on September 26, 2019.

C. The lower court reversed all of the judgment of the first instance on the grounds that the appeal case of the first case and the second case were combined on December 12, 2019 and the appeal case of the second case were combined, and subsequently, found the Defendant guilty of each of the above crimes and rendered a sentence of imprisonment for a year and two months to the extent of the applicable sentence, by applying the aggravation of repeated crimes and the aggravation of repeated crimes, after choosing imprisonment with prison labor.

3. Examining the above facts in light of the legal principles as seen earlier, since the case of the second case was a case for which only the defendant requested formal trial, the defendant did not choose a penalty more severe than a fine by the summary order for each crime in accordance with the principle of prohibition of raising the type of punishment, and furthermore, even if the second case was committed as concurrent crimes through consolidation and examination with the first case at the appellate court, imprisonment shall not be sentenced for the second case. Nevertheless, the lower court, at the appellate court of the second case, selected imprisonment with prison labor for each of the crimes of the second case more severe than a fine by the summary order for each crime of the second case and decided to punish one of the crimes of the second case through aggravation of concurrent crimes. In so doing, the lower court erred by misapprehending the principle of prohibition of raising the type of punishment as provided in Article 457-2 (1) of the Criminal Procedure Act.

4. Therefore, without examining the grounds of appeal, 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 Kim Jae-hyung (Presiding Justice)