Whether the principle prohibiting the raise of punishment provided for in Article 457-2(1) of the Criminal Procedure Act applies as it is to the case for which a formal trial is requested even in a case where a defendant requests formal trial and a case where another case is joined and examined and the case is placed under concurrent crimes (affirmative)

Article 457-2(1) of the Criminal Procedure Act, Article 37 of the Criminal Act

Supreme Court Decision 2019Do15700 Decided January 9, 2020 (Gong2020Sang, 510) Supreme Court Decision 2020Do355 Decided March 26, 2020 (Gong2020Sang, 866) Supreme Court Decision 2020Do1120 Decided April 9, 2020 (Gong2020Do1634 Decided April 9, 2020)

Defendant

Defendant

Attorney Park Sung-tae

Daejeon District Court Decision 2019No3853, 1810 decided March 25, 2020

The part of the judgment of the court of first instance among the judgment of the court of first instance is reversed, and that part of the judgment of the court of first instance is remanded to Daejeon District Court. The remaining grounds of appeal are dismissed.

1. We examine the part of the first instance judgment’s second instance judgment’s violation of Article 1-1(a) and the part of the second instance judgment’s violation of Article 178 of the High Court judgment’s second instance judgment (hereinafter “part of destruction”).

A. Article 457-2(1) of the Criminal Procedure Act provides, “A sentence of more severe punishment shall not be imposed on a case for which a defendant has requested formal trial.” The principle prohibiting the raise of punishment is set forth in the case for formal trial application. The principle prohibiting the raise of punishment applies as it is to the case for which a defendant has requested formal trial, and where a case for which a defendant has requested formal trial and another case is subject to concurrent crimes after consolidation and examination (see Supreme Court Decision 2019Do15700, Jan. 9, 2020). This is likewise applicable to the appeal case against the judgment of the first instance that was sentenced to a fine upon the defendant’s request for formal trial (see Supreme Court Decisions 2020Do1120, Apr. 9, 2020; 2020Do1634, Apr. 9, 2020).

B. According to the record, the following facts are revealed.

(1) The progress of the 2019No3853 case among the two cases joined in the lower court is as follows.

On April 30, 2019, the Defendant was indicted for larceny and damage to public goods at the Daejeon District Court's Incheon District Court's 2019 (2019Dadan905). 3 cases (2019Dadan1366, 2019Dadan1778, 2019 Godan1836) were additionally combined.

On November 28, 2019, the above court sentenced one month of imprisonment with prison labor, one month of imprisonment with prison labor and one month of confiscation of the remaining crimes (the first instance judgment) and the defendant filed an appeal against the crime under the latter part of Article 37 of the Criminal Act among Article 178 of the Criminal Act.

(2) The progress of the case 2019No1810 among the two cases joined in the lower court is as follows.

On September 13, 2018, the Daejeon District Court rendered a summary order regarding the crime of indecent act by compulsion to the defendant as a fine of KRW 5 million, 40 hours, and the order to complete the sexual assault treatment program for 40 hours, and subsequently, accepted the defendant's request for recovery of the formal trial (2019 High Court 133).

On May 31, 2019, the above court ordered a fine of KRW 3 million, 40 hours to complete a sexual assault treatment program (the second judgment of the first instance court), and the defendant filed an appeal.

(3) On March 25, 2020, the lower court reversed the part of the reversal on the grounds that the part of the appeal and the remaining crimes had a previous conviction between the reversed part and the final judgment, and issued an order to complete the sexual assault treatment program for a period of one month and 40 hours, on the ground that each crime of the reversed part is concurrent crimes under the former part of Article 37 of the Criminal Act. The lower court reversed ex officio the part of the reversal on the ground that the previous conviction and the latter part of Article 37 of the Criminal Act are concurrent crimes

Meanwhile, the lower court dismissed the Defendant’s appeal on the remainder of the crime except the reversed part.

C. Examining the above facts in light of the legal principles as seen earlier, since the judgment of the first instance court was a case where only the Defendant requested formal trial against the summary order, it cannot choose imprisonment with prison labor, which is more severe than the fine of the summary order, in accordance with the principle prohibiting the raise of the punishment. Nevertheless, the lower court selected imprisonment, not a fine, but sentenced to one month. In so determining, the lower court erred by misapprehending the principle of prohibiting the raise of the punishment prescribed in Article 457-2(1) of the Criminal Procedure Act.

2. We examine the remainder of the grounds of appeal with the exception of the reversal part.

According to Article 383 subparag. 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for more than ten years has been imposed, an appeal may be filed on the ground of unfair sentencing. Therefore, in this case where a more minor sentence has been imposed on the defendant, the argument that the sentence is too unreasonable

3. Scope of reversal

The defendant has a previous conviction between the reversed part and the remaining part of the final judgment, and sentenced one imprisonment with prison labor for the reversed part, and the remaining part of the crime separately. In this case, each crime of the reversed part must be reversed in entirety. However, since the remaining part of the crime is tried and judged separately and separately decided, this part does not fall under the scope of reversal (see Supreme Court Decision 9Do2934, Nov. 12, 199, etc.).

4. Conclusion

Without further proceeding to decide on the remainder of the grounds of appeal, the part of the judgment below that reversed is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining grounds of appeal are dismissed. It is so decided as per Disposition by the assent

Justices Lee Dong-won (Presiding Justice)