In a case where both a defendant and a prosecutor appealed from the whole of the case of the defendant and the case of the request for attachment order, but the prosecutor fails to submit the grounds of appeal regarding the case of the request for attachment order, whether the principle of prohibition of disadvantageous alteration is applied (affirmative)

Article 368 of the Criminal Procedure Act

Supreme Court Decision 98Do2111 Decided September 25, 1998 (Gong1998Ha, 2640), Supreme Court Decision 2012Do15260, 2012 Jeondo259 Decided February 28, 2013

Defendant and the respondent for attachment order

Defendant and the respondent for attachment order

Attorney Ha Man-young

Daejeon High Court Decision 2013No248, 2013No19 decided July 17, 2013

The part of the judgment below regarding the claim for attachment order among the judgment below is reversed, and that part of the case is remanded to the Daejeon High Court. The appeal against the accused case is dismissed.

The grounds of appeal are examined.

1. Defendant case

According to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed, an appeal on the grounds of unfair sentencing is permitted. As such, in this case where the defendant and the person requesting an attachment order (hereinafter referred to as "defendant") were sentenced to a lower sentence, the argument that the amount of punishment is unfair cannot be a legitimate ground for appeal.

2. As to the case of the claim for attachment order

According to the records, the first instance court shall be punished by imprisonment with prison labor for two years and six months, disclose disclosed information to the accused through an information and communications network for five years, notify the information on disclosure for five years, order the attachment of an electronic device for five years, and impose the matters to be observed as stated in the attached Form of the first instance judgment. The Defendant appealed against the accused case to the effect that the retroactive application of the Act is harsh and there is no risk of recidivism. The prosecutor appealed against the Defendant case and the case for which the attachment order was requested, but the prosecutor did not submit the statement of grounds for appeal regarding the case for which the request for attachment order was filed. The lower court reversed ex officio the period of attachment against the Defendant on the ground that the first instance court determined the period of attachment as five years even if the period of attachment was determined for the case for which the attachment order was requested, and the other sentence shall be the same as that of the attached document, but shall be extended to ten years only.

However, in cases where both the Defendant and the prosecutor appealed, but the prosecutor must dismiss the prosecutor’s appeal regarding the request for attachment order because the prosecutor failed to submit the grounds of appeal regarding the request for attachment order, the case where only the Defendant filed an appeal against the request for attachment order is the same as the case where the prosecutor filed an appeal against the request for attachment order. Thus, the appellate court shall not impose a heavier penalty than that of the first instance judgment regarding the request for attachment order in accordance with the principle of prohibition of disadvantageous alteration (see, e.g., Supreme Court Decisions 98Do2111, Sept. 25, 1998; 2012Do15260, Feb. 28, 2013; 2012Do259, Feb. 28, 2013)

Nevertheless, the lower court ex officio reverses the first instance judgment on the grounds of a mistake in the application of statutes with respect to the case of the request for attachment order for which the prosecutor failed to submit the statement of grounds of appeal, and imposed only the attachment order period for a longer period than the first instance judgment on the same sentence is deemed to be disadvantageously changed to the Defendant with respect to the case of the request for attachment order.

Ultimately, the judgment of the court below is erroneous in the misapprehension of legal principles as to the prohibition of disadvantageous alteration, which affected the conclusion of the judgment, and thus, the part of the judgment below regarding attachment

3. Conclusion

Therefore, the part of the judgment below regarding the claim for attachment order among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The appeal against the prosecuted case is dismissed. It is so decided as per Disposition by the assent of

Justices Kim Yong-deok (Presiding Justice)