In a case where the defendant applied for formal trial after being sentenced to a summary order due to larceny, etc., but the first instance court joined the above case of request for formal trial with other cases, such as embezzlement of stolen articles, etc., which was prosecuted by ordinary procedure, and subsequently selected both imprisonment and sentenced to imprisonment with prison labor for each crime, and the defendant and the prosecutor appealed on the ground of unfair sentencing, the case holding that the court below erred in violating Article 457-2 (1) of the Criminal Procedure Act in the part of the above case of request for formal trial among the judgment of the first instance, on the grounds that the defendant and the prosecutor violated the principle of prohibition of raising punishment as stipulated in Article 457-2 (1) of the Criminal Procedure Act, and that the judgment below which maintained the above case of request for formal trial

Article 457-2 (1) of the Criminal Procedure Act provides the principle prohibiting the above formal trial in the case of requesting formal trial on the ground that in a case where: (a) the first instance court joined the above case of requesting formal trial with other cases of embezzlement and embezzlement of stolen objects; (b) decided to punish all the offenses; and (c) decided to punish both concurrent offenses; and (d) the defendant and the prosecutor appealed on the ground of unfair sentencing, the case holding that Article 457-2 (1) of the Criminal Procedure Act provides the principle prohibiting the above formal trial by stating that “in a case where the defendant requests formal trial, the defendant shall not be sentenced to more severe punishment than that of the summary order,” on the ground that Article 457-2 (1) of the Criminal Procedure Act provides that “In a case where the defendant requests formal trial, the above part of the first instance court’s request for formal trial is a case where only the defendant requested formal trial, and sentenced to imprisonment more than that of a fine than that of the summary order; and (b) the court below erred by violating Article 457-2 (1) of the Criminal Procedure Act.

Articles 37, 38(1)2, 329, 330, 347(1), 347-2, 352, and 360(1) of the Criminal Act; Article 70(1)3 of the Specialized Credit Financial Business Act; Article 457-2(1) of the Criminal Procedure Act

Defendant

Defendant

Attorney Shin Dong-dong

Suwon District Court Decision 2019No4332 decided October 11, 2019

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

Judgment ex officio is made.

1. Article 457-2(1) of the Criminal Procedure Act provides that “No sentence more severe than that imposed on a case for which the defendant has requested formal trial shall be imposed” (Article 457-2(1) provides that “No sentence shall be imposed on the case for which the defendant has requested formal trial,” and sets forth the principle prohibiting the

2. The record reveals the following facts.

A. On June 11, 2018, the Suwon District Court rendered a summary order of KRW 3 million with respect to larceny, each crime of fraud, and the violation of the Specialized Credit Financial Business Act, to the Defendant, and only the Defendant requested formal trial.

B. The first instance court joined the foregoing case (2018 High Court 850), 2018 High Court 2752 High Court 2018 High Court 2752 in the case of embezzlement of stolen objects, etc., and thereafter, 7 cases were additionally joined.

C. On July 12, 2019, the first instance court: (a) chosen both imprisonment with prison labor for each crime as indicated in the judgment on July 12, 2019; and (b) sentenced the Defendant to one year and two months of imprisonment with prison labor; and (c) the Defendant and the prosecutor filed an appeal on the grounds

D. On October 11, 2019, the lower court dismissed both the Defendant and the prosecutor’s respective appeals on unreasonable sentencing.

3. Examining the above facts in light of the legal principles as seen earlier, the part of the first instance judgment concerning the case of 2018 High Court Decision 2018 High Court en banc Decision 2018 High Court Decision 850 was rendered by selecting imprisonment with prison labor, which is more severe than a fine imposed by the summary order even though the Defendant only requests formal trial. Accordingly, the lower court erred by violating the principle of prohibition of raising the penalty prescribed in Article 4

Nevertheless, the court below upheld the judgment of the court of first instance, which affected the conclusion of the judgment in violation of Article 457-2(1) of the Criminal Procedure Act.

4. Therefore, without examining the grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Jae-chul (Presiding Justice)