In a case where only the defendant appealed against the judgment of the court of first instance which sentenced five months of imprisonment without prison labor, and the court below found the defendant guilty as in the judgment of first instance, and found the defendant guilty as in the judgment of first instance, and sentenced the defendant to imprisonment without prison labor, five months of probation, two years of probation, probation, or forty hours of probation, the case holding that the court below erred in the misapprehension of legal principles in failing to correct the illegality of the judgment of the court of first instance which sentenced imprisonment without prison labor due to the excess of Article 38(2) of the Criminal Act on the aggravation of concurrent crimes, in a case where the court of first instance which

In a case where only the defendant appealed against the judgment of the court of first instance which sentenced the imprisonment without prison labor for five months, and the court below reversed the judgment of the court of first instance and sentenced the defendant to imprisonment for the crime A and the crime B as concurrent crimes under the former part of Article 37 of the Criminal Act while punishing each crime as concurrent crimes under the former part of Article 37 of the Criminal Act, the court held that the court below erred by misapprehending the legal principles as to the aggravation of concurrent crimes under Article 38(2) of the Criminal Act, where selecting a imprisonment without prison labor and a prison labor for concurrent crimes and imposing an order to attend a probation and 40 hours, the court held that the court below erred by misapprehending the legal principles as to the aggravation of concurrent crimes under Article 38(2) of the Criminal Act, where the court of first instance, who did not correct the violation of the principle of prohibition of disadvantageous change, although the court of first instance,

Articles 37, 38(1)2 and (2), and 50 of the Criminal Act; Article 368 of the Criminal Procedure Act

Defendant

Prosecutor

Attorney Park Jin-jin

Cheongju District Court Decision 2013No195 decided May 15, 2013

The judgment of the court below is reversed, and the case is remanded to Cheongju District Court Panel Division.

The grounds of appeal are examined.

1. The principle of prohibition of disadvantageous alteration is to guarantee the defendant's right to appeal or the right to request a formal trial against a summary order. In the case of a higher court or a formal trial case appealed for the defendant only or on behalf of the defendant, the court shall not pronounce a sentence more severe than that already sentenced or notified to the same criminal facts. In applying the principle of prohibition of disadvantageous alteration, rather than considering the order individually and formally, the severity of the sentence should be determined by considering the whole and substantial aspects of the sentence. The determination of whether the sentence disadvantageous to the sentenced defendant should be based on the seriousness of the criminal punishment under the Criminal Act. The determination of whether the sentence disadvantageous to the sentenced defendant should be made by considering the whole order such as concurrent punishment, additional punishment, suspended execution, period of detention in the workhouse, etc. (see, e.g., Supreme Court en banc Decision 97Do1716, Mar. 26, 1998; Supreme Court Decision 2004Do6784, Nov. 11, 2004).

Meanwhile, Supreme Court en banc Decision 75Do1543 Decided January 27, 1976 held that the first instance court reversed the judgment of the first instance court and sentenced the suspended sentence of one year to the defendant for six months, even though only the defendant appealed against the defendant, it shall be deemed that the defendant was disadvantageously changed to the defendant. However, it is evident that this is contrary to the purport of the en banc Decision 97Do1716 Decided March 26, 1998, since it was clearly against the purport of the en banc Decision 67Do185 Decided November 21, 1967 and the Supreme Court Decision 93Do2711 Decided December 10, 193.

2. According to the records, the first instance court convicted the Defendant of all the charges except for the charges dismissed in the first instance court, and sentenced the Defendant to imprisonment without prison labor for five months, and only the Defendant appealed. The lower court, like the first instance court, found the Defendant guilty of all the remaining charges, determined that the Defendant committed a violation of the Act on Special Cases concerning the Settlement of Traffic Accidents, and sentenced the Defendant to imprisonment without prison labor for the violation of the Guarantee of Automobile Accident Compensation Act and the violation of the Road Traffic Act (unlicensed Driving) as to the crime of violation of the former part of Article 37 of the Criminal Act, and sentenced the Defendant to imprisonment without prison labor for five months, suspension of execution two years, probation, and 40 hours, by applying Article 38(1)2 and Article 50 of the Criminal Act.

Examining this in light of the aforementioned legal principles, in the case of the aggravation of concurrent crimes by selecting a imprisonment without prison labor and a prison labor, the first instance court imposed a imprisonment without prison labor for five months on the defendant, while the imprisonment with prison labor and a prison labor should be deemed as imprisonment with prison labor pursuant to Article 38(2) of the Criminal Act. Accordingly, in this case where only the defendant appealed, the lower court’s conversion of the above imprisonment without prison labor to imprisonment with prison labor for the defendant without the change of the term of punishment to the imprisonment without prison labor does not violate the prohibition of disadvantageous change. Thus, the lower court’s rejection of the Defendant’s allegation of unfair sentencing by accepting the first instance judgment, but the failure of the first instance court to correct the above violation cannot be deemed as an inevitable measure to prevent any disadvantageous change to the first instance judgment. Therefore, the lower court erred by misapprehending the legal principles on the aggravation of concurrent crimes, thereby affecting

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)