[1] Whether an appellate judgment dismissing an appeal by a defendant on the sole ground of unfair sentencing can be considered as the grounds for appeal by mistake of facts or misapprehension of legal principles (negative)

[2] In a case where only one of the grounds for appeal on unfair sentencing was considered as grounds for appeal, and the appellate court claimed a mistake of facts or misapprehension of legal principles, whether it is legitimate to determine only the unfair sentencing (affirmative with qualification

[1] Where a defendant appealed the judgment of the court of first instance on the sole ground of unfair sentencing, the judgment of the court of first instance is reversed by admitting it, and the judgment of the court below which rendered a minor sentence is reversed, and the defendant cannot be viewed as the ground of appeal as the defendant

[2] Even if the defendant appealed only on the ground of unfair sentencing, and then newly asserted misunderstanding of facts at the appellate trial, if the argument does not affect the judgment on the ground of its lack of reason, it is justifiable to have determined only on the point of unfair sentencing without separately deciding on such point.

[1] Article 383 of the Criminal Procedure Act / [2] Article 364 (1) and (2) of the Criminal Procedure Act

[1] Supreme Court Decision 92Do3256 delivered on February 9, 1993 (Gong1993Sang, 1031) Supreme Court Decision 94Do2134 delivered on February 3, 1995 (Gong1995Sang, 1195) Supreme Court Decision 95Do2072 delivered on December 12, 1995 (Gong196Sang, 454) / [2] Supreme Court Decision 74Do502 delivered on March 26, 1974 (Gong194Sang, 1183)

Defendant

Defendant

Attorney Scark-scar

Busan High Court Decision 95No825 delivered on July 25, 1996

The appeal is dismissed.

We examine the grounds of appeal.

According to the records of this case, since it is apparent in the records that the defendant was unable to submit only the grounds for appeal against the judgment of the court of first instance as the grounds for appeal, the judgment of the court of first instance was reversed and sentenced to a minor punishment, the defendant cannot be considered as the grounds for appeal, such as misconception of facts or misapprehension of legal principles as the theory of lawsuit (see, e.g., Supreme Court Decisions 95Do2072, Dec. 12, 1995; 94Do2134, Feb. 3, 1995; 94Do1239, Aug. 12, 1994; 94Do1239, Aug. 12, 1994); and the appellate court is able to make an ex officio judgment even if the grounds for appeal affecting the judgment of the court of first instance are not included in the grounds for appeal (Article 364(2) of the Criminal Procedure Act); however, even if the defendant appealed only the grounds for appeal as the grounds for unfair sentencing, and if it did not affect the judgment, it is justified.

Furthermore, according to the selected evidence of the first instance court as cited by the court below and the record of the statement of the court below and the testimony of the witness interference with the understanding of the judicial police officer employed by the court below, etc., the ship of this case was changed to hyd's port under the certificate of ship's nationality, but its owner was changed to hyd's port under hyd's port, but it was merely established for the convenience of the above ship as h's ship's owner as h's for the convenience of disposal. However, according to the above 0th's ship's ownership and the above 9th's port after 0th's disposal of the above ship, it was delivered to the above h's first instance court after the above 0th's death, which was the same as the above h's right to dispose of the ship of this case, and from that point, the above 90th's ownership or interference with the above h's disposal of the ship of this case to the above 10th's ship after 0th's death.

In the same purport, the judgment of the court below is just on the ground that there was no error of mistake or misunderstanding of legal principles that affected the judgment of the court of first instance, which had affected the judgment of the court of first instance as a crime of evading customs duties, and there is no error of law such as omission of judgment, misunderstanding of legal principles, incomplete hearing, or misunderstanding of facts against the rules of evidence

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)