[1] Whether a prosecutor may appeal against the defendant on the ground that punishment of death, imprisonment with prison labor for life, or imprisonment with or without labor for not less than ten years is too minor (negative)

[2] The case where the sentence of death penalty is allowed, and the matters to be observed when the sentence of death penalty is sentenced

[1] Article 383 subparag. 4 of the Criminal Procedure Act / [2] Articles 41 subparag. 1, 51, 250(1), 329, and 342 of the Criminal Act

[1] Supreme Court Decision 94Do1705 Decided August 12, 1994 (Gong1994Ha, 2321), Supreme Court Decision 2016Do1108, 2016Do12 Decided April 15, 2016 / [2] Supreme Court Decision 2008Do9867 Decided February 26, 2009, Supreme Court Decision 2015Do5785, 2015 Jeondo105 Decided August 27, 2015

Defendant

Prosecutor

Attorneys Lee Young-min et al.

Seoul High Court Decision 2016No3301 decided January 24, 2017

The appeal is dismissed.

The grounds of appeal are examined.

Even in cases where a sentence of death penalty or imprisonment with or without prison labor for an indefinite term or for at least ten years is imposed on the accused, a prosecutor cannot file an appeal on the ground that the sentence is too minor (see, e.g., Supreme Court Decision 2016Do1108, Apr. 15, 2016; 2016Do12, Apr. 15, 2016).

Therefore, the Prosecutor’s ground of appeal, such as that the lower court’s determination of the sentence, which maintained the first instance judgment that sentenced the Defendant to imprisonment for life, is too uneasible and unreasonable, cannot be accepted, and it does not seem necessary to change such Supreme Court precedents.

In addition, given that the death penalty is an extremely exceptional punishment that can be presented by a judicial system as a cooling sentence that deprives of human life, the death penalty can be imposed only when it is acknowledged to be justifiable in light of the degree of responsibility for the crime and the purpose of the punishment. Only when it is revealed that the death penalty can be justified through a thorough examination of all circumstances constituting the conditions for sentencing mainly on the matters stipulated in Article 51 of the Criminal Act (see, e.g., Supreme Court Decision 2015Do5785, Aug. 27, 2015).

The lower court: (a) committed the instant crime on the grounds that the Defendant was sentenced to 15 years of imprisonment with prison labor due to robbery and for the reason that it is impossible to agree with the Defendant to kill another person and end his life only for a period of 4 months after he was sentenced to imprisonment with prison labor for robbery; (b) committed the instant crime on the ground that the Defendant planned to commit the instant crime of murder and attempted to kill and steals money and valuables by means of cruel means that the Defendant discovered the victim of a protruding site that led to the commission of committing the instant crime; (c) not only is there a serious doubt about the Defendant’s life, but also there is a fundamental doubt as to whether the Defendant was able to commit the instant crime, such as the victim’s and his family suffering; (d) however, even if the Defendant immediately surrenders to the Defendant on the date of the instant crime, there is no legal degree of mental disorder, such as editing illness, and there is no possibility that the Defendant might have committed the instant crime of imprisonment with prison labor due to these causes; and (d) there is no motive and possibility for the Defendant to commit the instant crime.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)