Principles on Amendments to Bill of Indictment and Prohibition of Disadvantages after Returning

Where the judgment of the court of final appeal is reversed by the defendant's final appeal and the case is remanded to the appellate court, the appellate court shall not be sentenced to more severe punishment than that of the reversed appellate judgment, and the case where the appellate court recognizes the defendant guilty of new facts of crime as a result of changes in indictment after remand, this legal principle shall also apply

Articles 368 and 399 of the Criminal Procedure Act

Supreme Court Decision 64Do298 Delivered on September 17, 1964

A

Attorney B

Supreme Court Decision 78Do3113 Decided February 27, 1979

Seoul High Court Decision 79No463 delivered on July 26, 1979

The judgment below is reversed and the case is remanded to Seoul High Court.

The defendant's first ground for appeal is examined.

Articles 368 and 399 of the Criminal Procedure Act provide that no sentence more severe than that of the original judgment shall be imposed on the case on which the defendant appealed or appealed for the defendant, and explain the so-called principle of prohibition of disadvantageous alteration. In the event the original judgment is reversed by the appeal of the defendant and the case is remanded to the appellate court by the appeal of the defendant, in light of the spirit of the above provisions of the Criminal Procedure Act, the appellate court has the opinion that it cannot be sentenced more severe punishment than that of the reversed appellate court's judgment (Supreme Court Decision 64Do298 delivered on September 17, 1964). It is consistent with the legal principle where the appellate court found the defendant guilty of a new crime due to the legitimate modification of the original judgment after the remand of the original judgment (Supreme Court Decision 64Do298 delivered on September 17, 1964). Accordingly, the court below reversed the original decision that only the defendant appealed for a period of one year and six months after the first one year and six years of imprisonment with prison labor, and reversed the original judgment and remanded the original judgment.

Therefore, without further proceeding to decide on other grounds of appeal, the court below's decision is delivered with the assent of all participating judges in applying Articles 390, 391, and 397 of the Criminal Procedure Act in order to have the court below re-examine and determine the other grounds of appeal.

Justices Hah-hova (Presiding Justice)