Whether it is permissible for a prosecutor to file an appeal to challenge only the reasons for the judgment (negative)

Article 338 of the Criminal Procedure Act

Supreme Court Order 92Mo21 delivered on March 4, 1993 (Gong1993Sang, 1182) Supreme Court Decision 2003Do8249 Delivered on March 26, 2004

Defendant

Defendant and Prosecutor

Attorney Seo-won et al. and one other

Daegu High Court Decision 2016No323 decided November 24, 2016

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

Examining the evidence duly adopted and examined by the lower court and the first instance court, the lower court was justifiable to have found the Defendant guilty of violation of the Act on the Control of Narcotics, Etc. from Handphones Import among the facts charged in the instant case on the grounds stated in its reasoning. In so doing, the lower court did not err by misapprehending the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, while adopting or failing to exhaust all necessary deliberations

Furthermore, under Article 383 subparag. 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 not less than ten years has been imposed. In this case where a minor sentence has been imposed against the defendant, the argument that the amount of punishment is unreasonable is not a legitimate

2. As to the Prosecutor’s Grounds of Appeal

Since a public prosecutor has the duty to request the legitimate application of the law as representative of public interest, a disadvantageous judgment against the opposite party may be appealed to correct the illegality if it is illegal, but objection shall be related to the order of the judgment, and an appeal shall not be allowed to be filed to challenge only the reasons of the judgment (see Supreme Court Decision 2003Do8249, Mar. 26, 2004).

The Prosecutor’s ground of appeal is that the lower court erred in its judgment by denying the admissibility of evidence. This is not related to the order of the lower judgment that pronounced guilty of all the facts charged of the instant case, but is obvious that it aims to challenge only the reasons.

3. Conclusion

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

Justices Lee Sang-hoon (Presiding Justice)