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The judgment below is reversed, and the case is remanded to Busan District Court.
Reasons
The grounds of appeal are examined.
1. As to the assertion of mistake of facts and misapprehension of legal principles, the lower court convicted the insult of the facts charged in the instant case.
The judgment below
Examining the reasoning in light of the relevant legal principles and evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules without exhaust all necessary deliberations, or by misapprehending the legal doctrine regarding the establishment of insult and the lawful act.
2. As to the assertion of violation of the principle of prohibition of disadvantageous alteration, the principle of prohibition of disadvantageous alteration as stipulated in Article 457-2 of the former Criminal Procedure Act (amended by Act No. 15257, Dec. 19, 2017; hereinafter “former Criminal Procedure Act”) seeks to guarantee the defendant’s right to claim a formal trial against the summary order. As such, in the case where the defendant requested a formal trial, the court may not sentence more severe punishment than that of the summary order notified by the defendant on the same criminal facts.
(See Supreme Court Decision 2018Do2513 Decided April 26, 2018 (see, e.g., Supreme Court Decision 2018Do2513). Article 457-2 of the Criminal Procedure Act (amended by Act No. 15257, Dec. 19, 2017; hereinafter “amended Act”) provides that a criminal defendant may be sentenced to an heavier penalty to the extent that he/she does not raise his/her punishment on a case for which a formal trial has been requested. However, Article 2 of the Addenda of the amended Act provides that a case for which a formal trial has been requested prior to the enforcement of
According to the records, ① the Defendant was notified of a summary order of a fine of KRW 3 million in relation to the facts charged in the instant case and requested a formal trial on November 2, 2017; ② the first instance court rendered a fine of KRW 5 million in relation to the instant case for which only the Defendant requested a formal trial; ③ The Defendant appealed against this, and the lower court rendered a judgment dismissing the appeal.
Examining the above facts in light of the legal principles as seen earlier.