[1] In a case where an unfair sentencing cannot be considered as a ground for appeal, whether a fact-finding court’s assertion that the fact-finding court misleads a fact-finding on the basic facts of sentencing or did not properly examine the circumstances that are conditions for sentencing constitutes legitimate grounds for appeal (negative) / Whether a fact-finding court’s inherent limit on the sentencing discretion of a fact-finding court / Whether the Defendant’s assertion of illegality constitutes legitimate grounds for appeal in a case where the fact-finding court, based on the crime prosecuted against the Defendant, did not prove the facts constituting a separate criminal offense that are not included in the sentencing condition under Article 51 of the Criminal Act, based on evidence having probative value to the extent that a reasonable doubt was excluded from a reasonable doubt, based on which the court of fact-finding did not have been proven based on the evidence that is an essential

[2] In a case where: (a) the Defendant was indicted for violation of the Narcotics Control Act with the content that he received and administered cambamscamscamscams; (b) the first instance court and the lower court found the Defendant guilty; and (c) the Defendant was not prosecuted on the column for “the reason for camscamscamscams” in the reasoning of the lower judgment; and (d) the fact that the term “sale of camscams” was written as the reason for camscamscamscamscamscamscamscamscamscams, compared to the first instance court, without any substantial change in the sentencing conditions; and (b) the lower court sentenced the same type as the first instance court, which did not specify the term “sale of cams” as the reason for camscamscamscamscamscams

[1] Article 51 of the Criminal Act regarding the conditions of sentencing provides for matters to be considered in determining the sentence. Since determining the sentence is a court’s discretion, the allegation that the fact-finding court erreds facts on the basis of sentencing or did not properly examine the circumstances that are conditions for sentencing, is not a legitimate ground for appeal, unless the grounds for appeal on the validity of sentencing are adjudicated in cases where death penalty, life imprisonment, or imprisonment with or without labor for not less than ten years is pronounced pursuant to Article 383 subparag. 4 of the Criminal Procedure Act.

However, in light of the discretionary discretion on the sentencing of the fact-finding court, the principle of balance of crimes and the principle of responsibility that a reasonable balance between crimes and punishment should be achieved, or the principle of accountability that the responsibility should be based on and proportionate to the defendant's liability, the inherent limitation exists within the scope of sentencing determination as to the criminal liability of the defendant as indicated in the facts-finding case.The defendant's assertion disputing illegality is a legitimate ground of appeal on the ground that the court of fact-finding case points out the illegality of sentencing beyond the simple sentencing determination, in a case where the defendant's argument was based on evidence having probative value as to the circumstances constituting separate criminal facts not included in the sentencing condition as provided by Article 51 of the Criminal Act, such as the motive or result of the crime committed by the court of fact-finding based on the crime prosecuted against the defendant, the circumstance after the crime, etc., and the fact-finding court did not prove the facts constituting a separate criminal facts that are not included in the sentencing condition as provided by Article 51 of the Criminal Act.

[2] The court below reversed the part of the judgment of the first instance on the ground that the crime of this case in the above final judgment and the crime of this case are concurrent crimes under the latter part of Article 37 of the Criminal Act, and sentenced the defendant to imprisonment for the same eight months as the judgment of the court of first instance on the ground that the crime of this case in the final judgment and the crime of this case in this case are concurrent crimes under the latter part of Article 37 of the Criminal Act and Article 39 (1) of the Criminal Act, and found the defendant guilty at the court of first instance and the court of first instance on the ground that the defendant was indicted for violating the Act on the Control of Narcotics, etc., which provided that the defendant received and administered Mephones (hereinafter referred to as "phiphonephones"), and there were parts in the judgment of the court of first instance, which are the fact that the defendant did not institute any prosecution against the defendant, and that the court below did not have any substantial change in the sentencing conditions of the court of first instance and the court of first instance on the ground that the above case did not have any substantial change in the sentencing and the sentence.

[1] Article 51 of the Criminal Act, Article 383 subparag. 1 and 4 of the Criminal Procedure Act / [2] Article 2 subparag. 3(b), Article 4(1)1, and Article 60(1)2 of the Narcotics Control Act, Article 37, Article 39(1), and Article 51 of the Criminal Act, Article 383 subparag. 4 of the Criminal Procedure Act

[1] Supreme Court Decision 87Do1410 Decided January 19, 198 (Gong1988, 468) Supreme Court Decision 90Do1940 Decided October 26, 1990 (Gong1990, 2482) Supreme Court en banc Decision 2005Do7288 Decided April 19, 2007 (Gong2007Sang, 923) Supreme Court Decision 2008Do1816 Decided May 29, 2008

Defendant 1 and one other

Defendants

Attorney Lee Ho-ho et al.

Busan District Court Decision 2020No757 decided Jun. 5, 2020, Busan District Court Decision 2020No757 decided Jun. 19, 2020

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Defendant 1

The lower court convicted Defendant 1 of the special injury portion among the charges charged against Defendant 1. Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding “hazardous goods” under Article 258-2(1) of the Criminal Act, or by omitting judgment.

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 not less than ten years has been imposed, an appeal may be filed on the ground of unfair sentencing. In this case where Defendant 1 was sentenced to a more minor punishment, the argument that the punishment is too unreasonable is not a legitimate

2. Defendant 2

A. Article 51 of the Criminal Act concerning the conditions of sentencing provides for matters to be considered in determining the punishment. Since determining the punishment is a court’s discretion, the argument that the fact-finding court misleads the facts on the basis of sentencing or did not properly examine the circumstances that form the conditions of sentencing, is not a legitimate ground for appeal, unless the grounds for appeal on the validity of sentencing are adjudicated in cases where death penalty, life imprisonment, or imprisonment with or without labor for not less than ten years is pronounced pursuant to Article 383 subparag. 4 of the Criminal Procedure Act (see Supreme Court Decisions 87Do1410, Jan. 19, 198; 90Do1940, Oct. 26, 1990).

However, in light of the discretionary discretion on the sentencing of the fact-finding court, and the principle of the principle of the responsibility that the crime should be balanced between the crime and the punishment, or the principle of the principle of the responsibility that the responsibility should be based on and proportionate to the defendant’s responsibility (see Supreme Court en banc Decision 2005Do7288, Apr. 19, 2007), the inherent limitation exists within the scope of the sentencing judgment as to the criminal liability indicated in the facts charged by the defendant. The defendant’s motive or result of the crime committed by the fact-finding court based on the crime charged against the defendant, and the circumstance after the crime, etc., which is not included in the sentencing conditions stipulated in Article 51 of the Criminal Act, are not proven based on evidence that has the probative value to exclude reasonable doubts. However, in a case where the fact-finding court additionally punishs the defendant for a crime for which no prosecution has been instituted, it can be deemed that the illegality of the sentencing judgment beyond mere sentencing and the principle of the balance between the crimes or the principle of the responsibility has been infringed. Therefore, the defendant’s grounds for appeal 20081.

B. Of the reasoning of the lower judgment, there are parts of the reasoning of the lower judgment that indicated “sale” as the reason for sentencing, which is the fact that Defendant 2 did not institute a prosecution against Defendant 2, and that it is not a separate condition for sentencing. However, examining the reasoning of the lower judgment in light of the relevant legal principles and the record, the lower court cannot be deemed as having reached the substance of the crime, such as additional punishment for Defendant 2, which is not actually prosecuted against Defendant 2. The reasons are as follows.

(1) On October 22, 2019, Defendant 2 appealed separately from Defendant 2, who was sentenced to imprisonment with labor for 10 months at the Busan District Court for obstruction of business, etc., but at the appellate trial, Defendant 2 was sentenced to the dismissal of the appeal on February 6, 2020. The above Defendant appealed against this and filed a final appeal on February 27, 2020, which was pending in the judgment of the lower court, and the above judgment became final and conclusive. The lower court reversed the part against Defendant 2 in the judgment of the first instance on the grounds that the crime of the above judgment and the crime of this case, which became final and conclusive during the trial of the lower court, are concurrent crimes under the latter part of Article 37 of the Criminal Act and the crime of this case should be determined at the same time in consideration of equity in cases where the judgment is to be rendered pursuant to Article 39(1) of the Criminal Act, and sentenced Defendant 2 to imprisonment with labor for 8 months as it is, after the latter part of Article

(2) In the records, there is no part that differs from the sentencing conditions of the first instance court and the lower court, except for the aforementioned grounds for reversal. Although the first instance court was prior to the determination of the foregoing case such as interference with business, the foregoing case including interference with business and the instant case were adjudicated at the same time, the balance of punishment was set as the condition for sentencing.

(3) Ultimately, the lower court, compared to the first instance court, determined and sentenced a sentence identical to that of the first instance court, which did not state “sale of philophones” as the grounds for sentencing, and thus, it is difficult to view that the fact of sale of philophones was reflected in the sentencing by putting the fact of sale of philophones as the core

C. Therefore, the lower court did not err in its determination of sentencing, contrary to what is alleged in the grounds of appeal, by infringing on the essential contents of the principle of balance and responsibility.

3. Conclusion

The Defendants’ final appeal is dismissed in entirety as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won (Presiding Justice)