[1] Criteria to determine the severity of punishment when applying the principle of prohibition of disadvantageous alteration

[2] In a case where a case for which the defendant requested formal trial against a summary order is combined with another case, whether it is against the principle of prohibition of disadvantageous alteration that a fine more severe than that imposed on the summary order is imposed as a fine in a concurrent criminal relationship as a result of the trial (negative)

[3] Standard of determining whether a sentence imposed is disadvantageously changed to the defendant, and method of determining whether a sentence imposed upon the consolidation constitutes disadvantageous change in the sentence imposed upon the defendant where a case for which the defendant filed an appeal or a formal trial and another case are brought to concurrent crimes after the consolidation of the cases

[4] In a case where the first instance court notified of a summary order of a fine of KRW 3 million in the case of Gap and Eul where the defendant claimed formal trial, and sentenced to a fine of KRW 4 million in a single penalty on the grounds that each of the above crimes was concurrent crimes after a consolidation of the cases of Gap and Eul where public prosecution was instituted, and the defendant appealeded Gap and Eul who were sentenced to imprisonment for four years in the first instance court, and sentenced Byung to three years in imprisonment, the case holding that the first instance court held that the first instance court's consolidation of the cases of Gap and Eul and Eul and sentenced to a fine of KRW 4 million in a fine of KRW; however, it did not violate the principle of prohibition of disadvantageous alteration.

[1] Article 368 of the Criminal Procedure Act / [2] Article 37 of the Criminal Act, Article 457-2 of the Criminal Procedure Act / [3] Article 37 of the Criminal Act, Articles 368, 39, and 457-2 of the Criminal Procedure Act / [4] Article 37 of the Criminal Act, Articles 368, 39, and 457-2 of the Criminal Procedure Act

[1] Supreme Court en banc Decision 97Do1716 delivered on March 26, 1998 (Gong1998Sang, 1253) / [2] Supreme Court Decision 2003Do4732 delivered on August 20, 2004 (Gong2004Ha, 1615) / [3] Supreme Court Decision 2004Do6784 Delivered on November 11, 2004 (Gong2004Ha, 2067)

Defendant

Defendant

Attorney Kim Young-young

Busan High Court Decision 2015No97-1, 149, 503 decided January 20, 2016

The appeal is dismissed.

The grounds of appeal are examined.

In applying the principle of prohibition of disadvantageous alteration, the order should not be examined individually and formally, but the severity of the sentence should be determined by considering the overall and substantial consideration (see, e.g., Supreme Court en banc Decision 97Do1716, Mar. 26, 1998). Where the defendant requests formal trial with respect to a summary order and the defendant is sentenced to one fine due to concurrent crimes under the former part of Article 37 of the Criminal Act as a result of concurrent trials, if the defendant is sentenced to a fine more severe than the fine prescribed in the summary order, it does not violate the principle of prohibition of disadvantageous alteration prescribed in Article 457-2 of the Criminal Procedure Act (see, e.g., Supreme Court Decision 2003Do4732, Aug. 20, 2004). Furthermore, the determination of whether the sentence has been changed to the disadvantage of the defendant who has been pronounced should be based on the severity of the punishment under the Criminal Act, but it should be judged whether the defendant has been sentenced to more unfavorable punishment than the defendant who has been sentenced to the original sentence or new punishment.

According to the records, the defendant was notified of a summary order of KRW 3 million in regard to the crime of false entry into public electronic records, etc. and the crime of uttering of false entry into public electronic records, etc. among the crimes in original judgment, and requested a formal trial with Busan District Court Branch Branch 2012 Go-Ma1729, Busan District Court Branch 2012 Go-Ma1729. At the first instance court, the defendant tried together with the case of fabrication of private documents and uttering of private documents which were prosecuted by Busan District Court Branch 2012 Go-Ma2484, Busan District Court 2012 Go-Ma2484, and sentenced KRW 4 million in punishment for the reason that each of the above crimes is concurrent crimes under the former part of Article 37 of the Criminal Act. The defendant appealed from the court of first instance, and the court below sentenced the case of the Busan District Court 2014 Go-Ma139, etc. ("the judgment of the court of first instance") which was sentenced to imprisonment with prison labor for the above three years.

In light of the above legal principles, the first instance court tried to consolidate the case for formal trial and the case for which the prosecution was instituted, and sentenced to a fine of KRW 4 million as a concurrent offender. However, the lower court sentenced a fine of KRW 4 million to imprisonment in the first instance court with prison labor for each crime of the portion for which a fine of KRW 4 million was sentenced in the first instance court, and sentenced a fine of KRW 4 million to imprisonment with prison labor for a summary order, as alleged in the grounds of appeal, and it does not violate the principle of prohibition of disadvantageous alteration. This part

The remaining arguments in the grounds of appeal are purporting to dispute the fact-finding of the lower court, such as the intention to obtain fraud, or there is an error of law by misunderstanding the legal doctrine on such intent. However, in principle, the selection and evaluation of evidence and the recognition of facts based on this belongs to the discretionary power of the fact-finding court. Even if examining the reasoning of the lower judgment in light of the records, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical

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

Justices Kim Shin (Presiding Justice)