Principle of the sentence of an irregular sentence and prohibition of disadvantageous changes

Where only the defendant is sentenced to an irregular sentence in a case on which only the defendant appealed, if the maximum term is higher than the sentence of the court below, the defendant may not be sentenced to an irregular sentence in accordance with the principle of prohibition of disadvantageous change.

Articles 2 and 54 of the Juvenile Act, Article 368 of the Criminal Procedure Act

Defendant

Defendant

Seoul District Court (66Da13343)

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than three years and six months.

One hundred and sixty-five days out of the detention days before the judgment of the court below is made shall be included in the original sentence.

Issues in the grounds of appeal against the instant case

First, although the defendant's defense counsel was a juvenile who has not attained 20 years of age, the court below's disposition that recognized the defendant as more than 20 years of age and sentenced a regular sentence was committed by mistake of facts and erred that affected the conclusion of the judgment. Second, although the defendant's defense counsel and the defendant participated in the crime of larceny as stated in the judgment, although the defendant did not commit the crime of robbery, the court below is deemed to have committed mistake of facts that affected the conclusion of the judgment.

First, in light of the above reasons for appeal, first, the defendant's statement in the trial process of the defendant, and the contents of the abstract of the family register (record 24-25) against the non-indicted in the preparation of the non-indicted in the defendant's statement in Kim Jong-gun in the defendant's trial process, the defendant can be recognized as a juvenile under the Juvenile Act who has yet to reach 20 years of age since he was born on March 23, 1949, and thus, a non-permanent sentence should be imposed on the defendant. The court below reversed the judgment of the court below without determining other grounds for appeal as follows, since it is apparent in the records that the remaining defendant who had taken the defendant's false statement in the trial process of the court below recognized as the defendant's adult who was born on May 25, 1945 and sentenced a regular sentence to the defendant. Thus, it cannot be said that the court below erred in the application of Article 54 of the Juvenile Act due to misconception of facts and erroneous judgment that affected

Since the criminal facts and evidence relations acknowledged by a member are the same as those in the court below, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

In this case, since the court below's judgment falls under Articles 337, 335, and 30 of the Criminal Act, the defendant is sentenced to a limited term of imprisonment within the scope of punishment which has been sentenced to discretionary mitigation pursuant to Articles 53 and 55 (1) 3 of the same Act, since the defendant is a juvenile under Article 2 of the Juvenile Act, and the defendant is sentenced to an irregular term of punishment pursuant to Article 54 of the same Act. However, if the defendant is a case for which only the defendant appealed within the above period of punishment, if the defendant is sentenced to an irregular term of punishment within the above period of punishment, the long term of punishment is more than three years and six months, and it violates the principle of prohibition of disadvantageous change under Article 368 of the Criminal Procedure Act, so it is inevitable that the defendant is sentenced to imprisonment for a fixed term of imprisonment and three years and six months, and the above 165 days of imprisonment prior to the sentence under Article 57 of the Criminal Act shall be included in the above sentence.

It is so decided as per Disposition.

Judges Jeong Tae-won (Presiding Judge)