[1] In a case where only the prosecutor appealed against the judgment of the appellate court which partially convicted and partly acquitted the concurrent crime, the scope of reversal at the time of reversal in the final appeal (=the portion of acquittal)

[2] The scope of reversal in the court of final appeal in a case where the defendant appealeds each of the prosecutor's appeals against the acquittal portion, and only the prosecutor's appeal against the acquittal portion is justified as to the judgment of the court of final appeal which partially convicted the defendant and partly acquitted the defendant (=

[3] In a case where both the defendant and the prosecutor appealed and the prosecutor's appeal was accepted, and the entire judgment of the court below is reversed, whether the principle of prohibition of disadvantageous alteration is applied (negative)

[1] Where the appellate court rendered a judgment of innocence as to the part of multiple criminal facts prosecuted as concurrent crimes, and the prosecutor appealeds the part of the acquittal, but did not appeal all the defendant and the prosecutor with respect to the part of the conviction, the part of the conviction becomes final and conclusive as long as the period of appeal has expired, and the part of the acquittal should be reversed.

[2] In a case where the appellate court rendered a judgment of innocence on the part of multiple criminal facts which were prosecuted as concurrent crimes, and the defendant appealed on the part of the conviction and the prosecutor appealed on the part of the acquittal, the entire judgment of the appellate court shall be interrupted, and the judgment of the appellate court shall be remanded to the court of final appeal, and in a case where the prosecutor's appeal on the part of the acquittal is justified even if the defendant's appeal on the part of the conviction was not reasonable, the part of the acquittal shall be reversed as well as

[3] The principle of prohibition of disadvantageous alteration is that a case on which a defendant appealed in order to guarantee the defendant's right to appeal and a case on which the defendant appealed on behalf of the defendant shall not be sentenced to more severe punishment than that of the judgment of the court below. Thus, this principle does not apply where the defendant and the prosecutor appealed upon the prosecutor's appeal as a result of the appeal by both the defendant and the prosecutor, and the whole of the judgment of the court below should be reversed and therefore the whole sentence against the defendant

[1] Articles 37 and 38 of the Criminal Act, Articles 384 and 391 of the Criminal Procedure Act / [2] Articles 37 and 38 of the Criminal Act, Articles 384 and 391 of the Criminal Procedure Act / [3] Articles 368, 396(2), and 399 of the Criminal Procedure Act

[1] Supreme Court en banc Decision 91Do1402 delivered on January 21, 1992 (Gong1992, 951) Supreme Court Decision 2004Do6371 Delivered on September 28, 2006 / [2] Supreme Court en banc Decision 2002Do807 Delivered on June 20, 2002 (Gong2002Ha, 1750)/ [3] Supreme Court Decision 2005Do8507 Delivered on January 26, 2006 (Gong2006Sang, 374)

Defendant

Defendant

Law Firm Pacific, Attorneys Nacheon-soo et al.

Supreme Court Decision 2003Do2780 Delivered on April 15, 2005

Seoul High Court Decision 2005No828 delivered on September 16, 2005

The appeal is dismissed.

We examine the grounds of appeal.

In a case where the court below rendered a judgment of innocence on the part of multiple criminal facts prosecuted for concurrent crimes, and the prosecutor filed a final appeal on the part of innocence, but all the defendant and the prosecutor did not file a final appeal on the part of the acquittal, the part of the conviction shall be reversed as long as the period of appeal is excessive (see Supreme Court en banc Decision 91Do1402 delivered on January 21, 1992). However, in a case where the court below rendered a judgment of innocence on the part of the conviction among several criminal facts prosecuted for concurrent crimes, and the defendant appealed on the part of the conviction, and the prosecutor filed a final appeal on the part of the acquittal, the entire final judgment of the court below shall be suspended, and the part of the conviction shall be reversed as well as the part of the conviction shall be reversed as a single sentence on the defendant if the prosecutor's final appeal on the part of innocence was with the reason for not guilty (see Supreme Court en banc Decision 2002Do807 delivered on June 20, 2002).

In addition, the principle of prohibition of disadvantageous change cannot be applied to a case on which a defendant appealed in order to guarantee the defendant's right to appeal and a case on which a defendant appealed on behalf of the defendant. Thus, as a result of both the defendant and the prosecutor's appeal, where both the defendant and the prosecutor have accepted the prosecutor's appeal and therefore the whole judgment of the court below should be reversed, so that the whole sentence against the defendant should be re-determined, it is not applied to the case as concurrent crimes.

In this case, the punishment of imprisonment with prison labor and suspension of qualification is prescribed to be imposed concurrently on the part of the crime of murder committed on commission and negligence on duty. The first instance court convicted the Defendant of both the crime of murder, the crime of commission on duty, the crime of abortion on commission on duty and the crime of violation of the Medical Service Act, and sentenced the sentence of three years of imprisonment with prison labor, suspension of execution four years, suspension of qualification and suspension of qualification for three years. Before remand, the lower court found the Defendant guilty only on the part of the crime of murder and the crime of negligence on commission on duty and the crime of negligence on duty, and sentenced the Defendant to two years of imprisonment with prison labor and six months of suspended execution and three years of suspension of qualification and one year of suspension of qualification for a violation of the Medical Service Act. The Defendant appealed on the part of the guilty, and the Prosecutor appealed on the part of the guilty. The final appeal by the Defendant was accepted only by the prosecutor, and reversed and remanded the part of

In response to this, the Defendant re-appeals that the Supreme Court’s dismissal of the Defendant’s appeal against the crime of occupational negligence, and the judgment below cannot raise the sentence of qualification suspension. Thus, the judgment of the court below, which is the same as the judgment of the court below, after remands the case, is contrary to the principle of prohibition of disadvantageous alteration. However, as seen above, since the Defendant and the Prosecutor appealed from both the Defendant and the Prosecutor, and the entire judgment of the court below was reversed before the remanding, the court below should re-determine the entire sentence against the Defendant, and the principle of prohibition of disadvantageous alteration

Therefore, the judgment of the court below which sentenced three years of imprisonment and four years of suspended execution and two years of suspension of qualification against the defendant cannot be said to be erroneous in the misapprehension of legal principles as to prohibition of disadvantageous alteration, as otherwise alleged in the ground of appeal.

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

Justices Jeon Soo-ahn (Presiding Justice)