Whether the sentence of a fine is against the principle of prohibition of disadvantageous alteration where only the defendant appealed against the judgment of suspension of sentence of imprisonment (affirmative)

Where only the defendant appeals against the judgment of the suspended sentence for a year of imprisonment with labor for the first instance, the sentence of a fine of 300,000 won by the second instance shall be more severe than that of the judgment of the first instance.

Article 368 of the Criminal Procedure Act, Article 427 of the Military Court Act

Supreme Court Decision 66Do1081 Decided September 27, 1966, Supreme Court Decision 66Do1026 Decided September 27, 1966

Defendant

Prosecutor

Attorney Lee Ho-ho

The High Military Court Decision 84 High Military Court Decision 11 delivered on May 28, 1984

The judgment of the court below is reversed, and the case is remanded to the High Military Court of Korea.

The prosecutor's grounds of appeal are examined.

According to the reasoning of the judgment of the court of first instance, the defendant guilty of the facts charged against the defendant, and the 23 days of pre-trial detention should be included in the principal sentence. However, considering the matters stipulated in Article 51 of the Criminal Act, the defendant appealed against the suspension of sentence against the defendant pursuant to Article 59 of the Criminal Act. The court of second instance reversed the judgment of the court of first instance and appealed a fine of 300,000 won, and sentenced the defendant to the detention of the defendant for the period calculated by converting the amount of 5,00 won into the 1st day when the above fine is not paid.

However, in a case where only the defendant appealed against the judgment of the court of first instance, the court of second instance shall not be sentenced to more severe punishment than that of the judgment of the court of first instance pursuant to Article 427 of the Military Court Law, and in this case, the sentence of the judgment of the court of second instance constitutes a sentence of more severe punishment than that of the judgment of the court of first instance as referred to in Article 427 (a) of the Military Court Law Meeting Act (see Supreme Court Decision 66Do1081, Sept. 27, 196). Therefore, the argument that points this out is reasonable.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Jong-sung (Presiding Justice)