[1] The standard for determining whether the defendant violated the principle of prohibition of disadvantageous alteration in a case where the appellate court should change the non-permanent period of the first instance court to a regular period of punishment when the defendant was sentenced to a juvenile at the time of the judgment of the first instance, and only the defendant appealed from the appellate court after the defendant became adult (=the long-term period of the non-permanent period

[2] The case holding that in a case where the court of first instance found the defendant guilty of murder and abandonment of body against the defendant who was a juvenile at the time of the court of first instance, and sentenced 15 years and 7 years of imprisonment with prison labor which is the highest term and short term under Article 4(2) of the Act on Special Cases Concerning the Punishment of Specific violent Crimes, which falls under the special provisions of Article 60(1) proviso of the Juvenile Act, and only the defendant appealed against this, and the defendant appealed from this case. Since the defendant reached majority before the court of first instance, the court below reversed the judgment of the court of first instance ex officio and sentenced 7 years of imprisonment with prison labor exceeding 7 years of an irregular short term and 7 years of imprisonment with prison labor sentenced by the first instance court in accordance with the principle of prohibition of disadvantageous alteration, the court below erred in the misapprehension of legal principles on the ground that the standard of determining whether the court of first instance violated the principle of prohibition of disadvantageous alteration when sentencing a regular sentence instead of an irregular sentence sentenced by the court of first instance

[1] [Majority Opinion] (A) The Juvenile Act provides that a juvenile shall be sentenced to an irregular sentence under Article 60(1) as a special measure with regard to criminal punishment in order to assist the sound growth of the juvenile, taking into account the special characteristics of the juvenile who has abundant possibility of improvement in the course of formation of personality and is in a special mental condition with mental and physical development. However, “juvenile” under Article 60(1) of the Juvenile Act refers to a person under 19 years of age as provided in Article 2 of the Juvenile Act, and shall be determined at the time of pronouncement of the judgment of the court of first instance. As such, if a defendant who has been sentenced to an irregular sentence in the first instance reaches the age of 19 before the appellate court sentenced, a regular sentence shall be sentenced. In this case, if only the defendant appeals or appeals for the defendant, the appellate court may not render a regular sentence with heavier penalty than the irregular sentence in the judgment of first instance.

However, on the other hand, an irregular sentence is a sentencing with the width of the prolonged and short term, whereas a regular sentence has the form of occupation, which makes it difficult to simply compare the seriousness of both punishments with regard to the application of the principle of prohibition of disadvantageous change. Ultimately, if a defendant needs to change an irregular sentence to a regular one after reaching the age of 19 years prior to the appellate court’s ruling, determination of a regular sentence that does not go against the principle of prohibition of disadvantageous change would result in specifying the existence of a regular sentence that can be evaluated as substantially equivalent to the irregular sentence in substance at any point between the prolonged and short term of the irregular sentence. This is not a matter of “a level” to determine whether a certain degree of punishment should be determined based on the determination of which degree of punishment should be determined from among the short term to the short term, as well as on the basis of the determination of which the degree of punishment should be determined based on which the principle of prohibition of disadvantageous change is violated. Accordingly, when determining a regular sentence that can substantially be evaluated as equal to the irregular sentence, the characteristic of the past and the short term should be considered comprehensively in the purpose of the defendant’s right to appeal system.

In full view of these legal principles, it is reasonable to view that a regular term that can be evaluated as substantially equivalent to an irregular term is an irregular term or a short-term term sentence (for example, four years of imprisonment with prison labor for a maximum term of four years, and three years of imprisonment for a short term of two years; hereinafter “interim term”) and that the standard for determining whether a defendant violated the principle of prohibition of disadvantageous change when the defendant reverses the irregular term sentence sentenced in the first instance trial and sentences a regular term of nine years prior to the pronouncement of the appellate trial should be the middle term and the short-term imprisonment.

(B) Even though a regular sentence that can be sentenced in an appellate trial is heavier than a short term of an irregular sentence, if the regular sentence is within the period during which the defendant can reasonably expect due to the confirmation of an irregular sentence, it is reasonable to view that the defendant can exercise his/her right to appeal based on reasonable judgment without threat of substantial disadvantages. In this regard, the defendant who was sentenced to an irregular sentence can expect the termination of the execution of the sentence by the prosecutor’s direction under Article 60(4) of the Juvenile Act with the same possibility from the expiration of the short term of an irregular sentence to the expiration of the long term of the punishment. As such, the long term and the short term of an irregular sentence are consistent with the period during which the defendant who was sentenced to an irregular sentence can reasonably expect the execution of the sentence.

(C) Ultimately, the issue of specifying a regular sentence that can be assessed as substantially identical to an irregular sentence is rather than an issue that can be clearly demonstrated clearly, but rather, rather than an issue that can be determined by the maximum of an irregular sentence. From this perspective, comprehensively taking into account the following as a whole: (a) the principle of liability, the principle of no disadvantage change, and the purpose of adopting the system of an irregular sentence, the Juvenile Act’s adoption of the principle of no disadvantage change, i.e., the principle of no more than a certain amount of punishment from a short term to a long term, is to prevent excessive restriction on the exercise of the right of sentencing appropriate for the principle of liability, which is the basic principle of criminal liability, and at the same time, to prevent the decline in the exercise of the right of appeal; and (b) an assessment of whether a certain degree of punishment exists between a short term and a short term of an irregular sentence, which is a matter of determining the appropriate standard of punishment; and (c) the issue of determining the maximum of an irregular sentence. From this point of view, whether the principle of no disadvantage change of an irregular sentence can be determined relatively based on the prolonged or short term.

[Concurring Opinion by Justice Park Sang-ok, Justice Min You-sook, and Justice Lee Dong-won] (A) In a case where a defendant was sentenced to an irregular sentence on the ground that he fell under a juvenile when the court of first instance rendered a judgment, and only the defendant appealed, the defendant must reverse the irregular sentence sentenced by the court of first instance and sentence a regular sentence on the ground that he reached the age of 19 before the court of appeal rendered the judgment, it is reasonable to determine whether the defendant violated the principle of prohibition of disadvantageous alteration on the basis of a long-term basis, not the intermediate sentence of the irregular sentence

(B) The period of execution of a sentence that can reasonably be expected for the Defendant to be sentenced to an illegal term constitutes a long-term period. According to statistical data for the ten-year period from 2009 to 2018, it appears that the decision on the termination of execution of a sentence has not been made for the said period. Moreover, the ratio of actual execution of a sentence to a long-term period among juvenile inmates reaches 60.21%. Even in cases where parole is granted without having been executed for a long-term term, barring any special circumstance, the execution of a sentence itself does not fall short of the long-term period, and is distinguishable from the case where adult inmates who were sentenced to a regular sentence identical to a long-term period are provisionally released (see Article 66 of the Juvenile Act). Considering this point, the period of execution of a sentence that the Defendant reasonably expected to be sentenced to an illegal term

Meanwhile, Article 65(1) of the Military Service Act provides that “a person eligible to be transferred to supplemental service or to be transferred to wartime labor service and prescribed by the Presidential Decree as a convicted prisoner” and Article 136(1)1(a) of the Enforcement Decree of the Military Service Act provides that “a person who is sentenced to imprisonment with or without prison labor for not less than six months but not more than one year and less than six months” refers to a person who is sentenced to imprisonment with or without prison labor for a period of not less than one year and less than six months” and that “in this case, where a sentence is sentenced with a prolonged and short term sentence as an irregular term of imprisonment, the said sentence shall apply.”

(C) In a case where an irregular sentence is imposed by setting a maximum and short term, deeming that the maximum term constitutes a liability type is consistent with the principle of liability, and is consistent with the standard for comparison of seriousness of the maximum term equivalent to the maximum term of liability as seen earlier. Moreover, the appellate court should decide whether to file an appeal, taking into account all the facts as follows: (a) the accused who is expected to do so at an appellate court may no longer apply the Juvenile Act in the appellate court; and (b) the maximum term of an irregular term constitutes a liability type, and (c) where an irregular term becomes final and conclusive,

Therefore, in a case where the defendant was sentenced as a juvenile in the first instance court but was sentenced to an irregular sentence as an adult in the appellate court, the appellate court should determine whether the defendant violated the principle of prohibition of disadvantageous change. It is reasonable to allow the appellate court to re-determine an appropriate type consistent with the defendant's responsibility by exercising its sentencing discretion to the maximum extent by taking into account both the characteristics of the irregular sentence and the long-term and short-term period within the scope of not more than the maximum period of the irregular sentence, etc. In light of various circumstances, such as the purport of the principle of prohibition of disadvantageous change, the criteria for determining disadvantage change, the purport of the provisions of the Juvenile Act, the detailed contents thereof, and the relationship between the principle of liability and the principle of no disadvantageous change.

[Dissenting Opinion by Justice Park Jung-hwa and Justice Kim Seon-soo] (A) When applying the principle of prohibition of disadvantageous changes to a disadvantage, it is difficult to impose a sentence exceeding the short term term in the appellate trial, compared to the short term and the regular term, when the severity between the irregular term and the regular term term, compared to the irregular term and the short term, was the consistent opinion of the Supreme Court that had been 70 years since 1953, and the above opinion is reasonable. Therefore, we cannot agree with the grounds and conclusion of the Majority Opinion

(B) The principle of prohibition of disadvantageous alteration is not the principle of determining the heat of unreasonable objection objectively between two punishments, but the principle of determining the scope of punishment that can be sentenced by the appellate court in the case where only the defendant appealeds or appealed for the defendant. Therefore, when determining whether the sentence imposed before and after the alteration is disadvantageous to the defendant, if there are various possibilities due to changes in certain conditions, the effect of the sentence imposed is not doubtable, and the punishment before and after the alteration is the most favorable to the defendant, and the punishment after the alteration shall be compared with the case where the most unfavorable to the defendant. This is not only consistent with the purport of determining “whether the defendant is not substantially disadvantageous to the defendant,” but also a clear and simple method, and an interpretation is faithful to the principle of prohibition of disadvantageous alteration for the purpose of guaranteeing the defendant’s right to appeal.

(C) Where an irregular sentence is pronounced, the possibility of the release of the accused or the termination of the sentence is the beginning of the short-term sentence. In cases where it is deemed that the result of the juvenile offender’s criminal sentence for which the short-term sentence has passed is good and that the correctional purpose has been achieved, the head of the agency executing the illegal sentence against the juvenile may terminate the execution of the sentence (Article 60(4) of the Juvenile Act), and parole may be granted upon the expiration of one-third of the short-term period (Article 65 of the Juvenile Act) under the direction of the public prosecutor of the competent public prosecutor’s office (Article 65 of the Juvenile Act); the period of parole is the same as that of the execution before parole; however, in principle, the probation review committee may decide that the execution of the sentence has been completed upon the request of the head of the probation office or ex officio even before the expiration of the period of parole (Article 50(1) of the Probation, etc. Act).

If the Defendant was sentenced as a juvenile in the first instance court and was sentenced to an irregular sentence, the possibility of release or termination of sentence starting from the short term as seen above is granted. In such a case, only the Defendant appealed and the principle prohibiting disadvantageous change applies to the Defendant, but in the appellate court, the Defendant’s non-scheduled sentence should be reversed and sentenced to a regular sentence exceeding the short term sentenced in the first instance trial, if the Defendant is sentenced to a regular sentence exceeding the short term sentenced in the first instance trial, the possibility of release or termination of sentence would be deprived, and thus, the Defendant would be disadvantageous to the Defendant. Therefore, it is reasonable to interpret that the sentence exceeding the short term of the irregular sentence cannot be sentenced in the appellate court, compared to the short term and the regular sentence during the irregular term.

[2] In a case where the court of first instance found the defendant as 18 years old at the time of the trial guilty of murder and abandonment of body against the defendant who is a juvenile, and sentenced 15 years long-term and short-term imprisonment with prison labor for the maximum and short-term years and 7 years short-term under Article 4(2) of the Act on Special Cases concerning the Punishment of Specific Crimes, which fall under the special provisions on Article 60(1) proviso of the Juvenile Act, and only the defendant appealed against this, but the defendant only appealed. The court below reversed the judgment of first instance ex officio and sentenced the court of first instance to a regular sentence, and sentenced the defendant seven years of imprisonment with prison labor exceeding 7 years short-term imprisonment with prison labor sentenced by the first instance court under the principle concerning the prohibition of disadvantageous alteration, on the ground that the defendant cannot be sentenced to a short-term imprisonment with prison labor for a short-term term of 15 years sentenced by the court of first instance and 7 years long-term imprisonment with prison labor for a short term of 15 years, i.e., 115 years [17 years disadvantage].

[1] Articles 2, 60(1), (2), and (4), 65, and 66 of the Juvenile Act, Article 65(1)1 of the Military Service Act, Article 136(1)1 (a) of the Enforcement Decree of the Military Service Act, Article 50(1) of the Act on Probation, Etc., Article 368 of the Criminal Procedure Act / [2] Articles 161(1) and 250(1) of the Criminal Act, Articles 2 and 60(1) of the Juvenile Act, Articles 2(1)1 and 4(2) of the Act on Special Cases Concerning the Punishment of Specific Crimes, Article 368 of the Criminal Procedure Act

[1] Supreme Court Decision 4286Do14 Decided November 10, 1953 (Amended by Presidential Decree No. 2006Sang, 845), Supreme Court Decision 429Do114 Decided March 18, 1969 (Amended by Presidential Decree No. 2006Do734 Decided April 14, 2006 (Amended by Presidential Decree No. 2006Sang, 845) (Amended by Presidential Decree No. 2009Do2682, 209Ha, 1077) (Supreme Court Decision 2014Do1276 Decided May 28, 2009), Supreme Court Decision 2009Do2682, 209Do7 (Gong2009Ha, 1077), Supreme Court Decision 2014Do12716 Decided November 13, 2014

Defendant 1 and one other

Defendants and Prosecutor

Attorneys Kim Young-jin et al.

Seoul High Court Decision 2020No81 decided March 26, 2020

The part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to the Seoul High Court. The Prosecutor’s appeal against Defendant 2 and Defendant 2’s appeal are dismissed.

The grounds of appeal are examined.

1. As to the Prosecutor’s ground of appeal on Defendant 1

A. Case summary and key issue

1) Case summary

The Juvenile Act provides that where a juvenile under 19 years of age is sentenced to an illegal term sentence, a maximum term shall not exceed ten years, and a minimum term shall not exceed five years (Article 2 and the proviso of Article 60(1)). The Act on Special Cases Concerning the Punishment of Specific Crimes (hereinafter “Specialized Crimes Act”) provides that where a juvenile who has committed a specific violent crime, such as murder, is sentenced to an illegal term sentence, the maximum term shall not exceed 15 years, and the minimum term shall not exceed seven years, notwithstanding the provisions of the above Act (Article 4(2)).

Defendant 1 was indicted as a crime of murder and abandonment of body, and the first instance court convicted all of the charges, and sentenced Defendant 1, who was 18 years of age at the time, to a maximum of 15 years of imprisonment and a minimum of 7 years of imprisonment, which falls under the special provisions on the proviso of Article 60(1) of the Juvenile Act, under the special provisions on Article 60(2) of the Juvenile Act, to a maximum of 15 years of imprisonment and a minimum of 7 years of imprisonment. Defendant 1 only appealed and the prosecutor did not appeal. However, Defendant 1 became 19 years of age prior to the pronouncement of the lower judgment.

2) The judgment of the court below

The lower court found Defendant 1 guilty of all the facts charged against Defendant 1, as in the first instance trial, but reversed ex officio the first instance judgment on the ground that Defendant 1 did not constitute a juvenile prior to the pronouncement of the lower judgment, and sentenced Defendant 1 to seven years of imprisonment on the ground that Defendant 1 cannot be sentenced to imprisonment with prison labor for a short term exceeding seven years, which is the short term imprisonment sentenced by the first instance court, on the ground that Defendant 1 cannot be sentenced to imprisonment with prison labor for a limited term exceeding seven years, in accordance with the previous Supreme Court Decision (Supreme Court Decision 2006Do734 Decided April 14, 2006, etc.).

3) Prosecutor’s ground of appeal

It is reasonable for a prosecutor to compare the seriousness of a regular term of imprisonment with the maximum of 15 years, which is the maximum term of the irregular term of imprisonment sentenced by the first instance court, in the case of applying the principle of prohibition of disadvantageous changes between the irregular term of imprisonment and the regular term of imprisonment.

4) Key issue of this case

As in this case, in a case where the defendant was sentenced as a juvenile at the time of rendering a judgment of the first instance, and only the defendant should be sentenced to a regular sentence when he/she attains the age of majority, the appellate court cannot pronounce a regular sentence heavier than the irregular sentence sentenced in the first instance court in accordance with the principle of prohibition of disadvantageous alteration. In this case, the issue is how to determine the upper limit of a regular sentence sentenced by the appellate court. In other words, the issue is how to set the standard for determining whether the appellate court should determine the violation of the principle of prohibition of disadvantageous alteration when the appellate court should change the irregular sentence of the first instance to a regular

B. Standard for determining whether the principle prohibiting disadvantageous changes was violated in an irregular term of punishment

1) In a case where only the defendant appealed an appeal, the appellate court may not sentence a more severe punishment than that of the judgment of the court of first instance (Article 368 of the Criminal Procedure Act). Since the principle of prohibition of disadvantageous alteration is clear in the text of the law, which is the principle of prohibition of heavy punishment, which is prohibited from any disadvantage in the sentence to be pronounced, whether it is disadvantageous or not should be objectively compared and determined with the sentence imposed (see, e.g., Supreme Court Decisions 9Do3776, Nov. 26, 199; 2004Do6784, Nov. 11, 2004; 2004Do6784, Nov. 11, 2004). In addition, whether the sentence imposed was modified disadvantageous to the defendant should be determined on the basis of the severity of the sentence under the Criminal Act, but rather on the basis of whether it is practically disadvantageous to the defendant (see, e.g., Supreme Court en banc Decision 97Do1716, Mar. 26, 1998).

Article 60(1) of the Juvenile Act provides that a juvenile shall be sentenced to an irregular sentence under Article 60(1) as a special measure with respect to criminal punishment in order to ensure the sound growth of the juvenile, taking into account the unique characteristics of the juvenile who is in a special mental condition with abundant mental and physical development (see, e.g., Supreme Court Decisions 2014Do11586, Nov. 13, 2014; 2016Do7112, Jul. 27, 2016). Provided, “Juvenile” under Article 60(1) of the Juvenile Act refers to a person under 19 years of age as provided in Article 2 of the Juvenile Act, and the judgment of the court below should be determined based on the time it is declared that the defendant who was sentenced to an irregular sentence in the first instance court reaches the age of 19 years prior to the pronouncement of the appellate court (see, e.g., Supreme Court Decision 201Do7168, Jul. 27, 2016).

However, on the other hand, an irregular sentence is a sentencing with the width of the prolonged and short term, whereas an irregular sentence is a sentencing with the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation of the occupation.

In full view of these legal principles, it is reasonable to deem that a regular term that can be evaluated as substantially equivalent to an irregular term is an irregular term and a short-term term sentence (for example, four years of imprisonment for a maximum term and three years of imprisonment for a short term of two years, and three years of imprisonment for a short term of two years; hereinafter “interim term”). As such, when the defendant reverses an irregular term sentence sentenced in the first instance trial and declares a regular term sentence before the court of appeal, the standard for determining whether the defendant violated the principle of prohibition of disadvantageous change should be the prolonged term and the short-term sentence. The detailed reasons are as follows.

A) Illegal sentence is imposed upon setting a maximum and short term (Article 60(1) main sentence of the Juvenile Act). Irregular term means a “explosive” from a short term to a long term, and only the fact that a sentence in a short term can be determined solely by the sentence in a short term or short term is determined to be more than a short term and less than a short term.

Meanwhile, Article 60(4) of the Juvenile Act provides, “The head of an agency executing an irregular sentence against a juvenile who has served a short term shall be able to terminate the execution of the sentence in accordance with the direction of the public prosecutor of the competent public prosecutor’s office where the record of criminal administration of a juvenile whose short term has passed is good and the purpose of correction is deemed to have been achieved.” The defendant who has been sentenced to an irregular sentence is in a position likely to terminate the execution of the sentence after the lapse of the short term of the irregular sentence. Therefore, the same term of the irregular sentence is apparent to be more severe than the irregular sentence in view of the possibility of executing the sentence lower than the short term of the irregular sentence, and the same term of the irregular sentence is more likely to be executed than the irregular sentence, taking into account the possibility of executing the sentence higher than the short term of the irregular sentence, it is apparent that there is a short term of the irregular sentence. Accordingly, it is apparent that there is a point at which it can be evaluated as substantially equivalent to the irregular sentence between the

Ultimately, in order to compare the irregular term and the severity of the irregular term of the nature contrary to the foregoing, the issue of determining whether the defendant violated the principle of prohibition of disadvantageous change when he/she attains the age of 19 years prior to the appellate court’s ruling is a matter of determining the standard for determining whether the irregular term of the non-scheduled term of the non-scheduled term of the non-scheduled term of the non-scheduled term of the non-scheduled term of the non-scheduled term of the non-scheduled term of the non-scheduled term of the non-scheduled term of the non-scheduled term of the same in substance as the non-scheduled term of the non-scheduled term of the non-scheduled term of the non-scheduled term of the non-scheduled term

The principle of responsibility that punishment shall be based on the responsibility and proportional to the liability, and the principle of prohibition of disadvantageous alteration adopted to prevent the decline of exercise of the right to appeal due to concerns that the appellate court may be sentenced to a de facto disadvantageous punishment in the appellate trial. The key issue of this case is whether a certain degree of punishment from a short term to a long term, could be an appropriate standard in harmony between the principle of responsibility and the principle of prohibition of disadvantageous alteration. In other words, the appellate court’s excessive restriction on the exercise of proper sentencing discretion in accordance with the principle of liability against a defendant who is no longer subject to the Juvenile Act, thereby giving undue benefits to the defendant. However, in the case where only the defendant appealed, there is a problem of “the extent” determining whether the exercise of the right to appeal may be a standard in order to prevent the decline of the exercise of the right to appeal due to the risk that punishment heavier than the illegal punishment sentenced by the first instance court may be sentenced in the case where only the defendant appealed, and it is not a problem of determining the upper limit of the irregular punishment by selecting one of the prolonged punishment.

B) The principle of prohibition of disadvantageous alteration is a principle that the appellate court, which was adopted to prevent the chilling of the exercise of the right to appeal due to the risk to be disadvantageously affected by the appellate court, does not impose a sentence more disadvantageous than that already sentenced to the sentence, and does not give the most favorable result to the defendant despite changes in the situation after filing an appeal (see, e.g., Supreme Court Decisions 2005Do5822, Oct. 28, 2005; 2007Do3448, Jul. 13, 2007).

The special measures regarding criminal punishment prescribed by the Juvenile Act are prescribed to help a juvenile grow up soundly by emphasizing the condition of a juvenile, and it is not prescribed to identify the age as a responsible element, or identify the characteristics of a juvenile as a problem of responsibility (see, e.g., Supreme Court Decisions 91Do2393, Dec. 10, 191; 2016Do7112, Jul. 27, 2016). As such, in light of the purpose of Article 60(1) of the Juvenile Act, separate from the issue of liability, the special measures regarding criminal punishment, such as an irregular term and its short-term and long-term punishment (Article 60(1)), mitigation of punishment (Article 60(2)), etc., when the Juvenile Act emphasizes the condition of a juvenile, it is reasonable to deem that special measures regarding criminal punishment, such as an irregular term, as prescribed by the Juvenile Act, have been prepared to be reflected in the direction of the defendant as a benefit of the principle of responsibility.

A defendant who was sentenced to an irregular sentence in the first instance trial before reaching the age of 19 may sufficiently recognize the circumstances that he/she would no longer be subject to criminal punishment, taking into account the condition that he/she is a juvenile, as he/she reaches the age of 19 prior to the appellate court’s sentence. Therefore, a defendant who has reached the age of 19 may exercise his/her right to appeal, thereby sufficiently predicting that he/she may be sentenced to a heavier sentence than the short term of the most favorable to the defendant, rather than the short term of the illegal sentence. Moreover, the exercise of his/her right to appeal by the defendant may not be deemed to decline solely on the ground that he/she may be sentenced to a heavier sentence than the short term of the illegal sentence. This is because even where the sentence of the illegal term sentenced in the first instance trial becomes final and conclusive, the defendant may be subject to the execution of the sentence

Ultimately, even though a regular sentence that can be sentenced in an appellate trial is more severe than a short term of an irregular sentence, if the regular sentence is within the period during which the defendant can reasonably expect due to the confirmation of an irregular sentence, it is reasonable to view that the defendant can exercise his/her right to appeal based on reasonable judgment without threat of substantial disadvantages. In this regard, the defendant who was sentenced to an irregular sentence can expect the termination of the execution of the sentence by the prosecutor’s direction under Article 60(4) of the Juvenile Act with the same possibility from the time when the short term of the irregular sentence expires to the time when the short term of the punishment arrives. As such, the long term and the short term of the irregular sentence can be said to coincide with the period during which the defendant who was sentenced to an irregular sentence reasonably anticipated the execution of the sentence.

If the appellate court can reasonably pronounce a fixed sentence only within the period of the execution of the sentence that the defendant can reasonably expect due to the confirmation of an irregular sentence, i.e., the period of the irregular sentence and the period of the short-term sentence, the defendant may exercise his/her right to appeal based on reasonable judgment without threat of substantial disadvantages. In addition, the appellate court may exercise its right to reasonable discretion in sentencing, taking into account the circumstances that the Juvenile Act does not apply to the act providing special measures regarding criminal punishment, taking into account the status of the juvenile, to the extent that the exercise of the defendant’s right to appeal is no longer obstructed. Thus, in full view of the purpose that the Juvenile Act adopts the irregular sentence system, the principle of responsibility, and the principle of prohibition of disadvantageous change, it is reasonable to deem that the intermediate of the irregular term and the short term

C) Unlike the foregoing, it is unreasonable to consider the period or short-term of an irregular term as the basis for determining whether the principle of prohibition of disadvantageous alteration was violated in an irregular term of imprisonment is unreasonable for the following reasons.

(1) The long-term or short-term term of an irregular sentence is not an appropriate standard to objectively compare and determine whether the sentence has been substantially modified, depending on the seriousness of the sentence.

Inasmuch as setting the standard for determining the severity of a sentence sentenced by a sentence is to objectively compare and determine whether the changed sentence, which is not a final purpose, is a means of determining whether it is a heavier punishment, rather than a final one, and as such, it cannot be considered as a means inappropriate for objectively comparing and determining the severity of the sentence by taking the same more than the reasonableness and feasibility of the logic. However, considering the following matters, when considering the following matters, the period and the short term are clearly specified in the irregular term, but it is clearly revealed that the severity of the punishment cannot be objectively compared and determined based on the long or short term or the short term of the irregular term.

(A) Defendants A and B, who are juveniles, were indicted together with accomplices. Defendant A was sentenced to a maximum of five years of imprisonment at the first instance court, a short of three years of imprisonment at the first instance court, and Defendant B was sentenced to a maximum of five years of imprisonment at the first instance court and a short of one year of imprisonment at the first instance court. Defendants A and B appealed only before both Defendant A and B rendered an appeal, and all of them reached the age of 19 years prior to the pronouncement of the appellate court judgment. In this case, it is objectively clear that the first instance court’s sentence imposed on Defendant B was more objectively sentenced. However, in a case where the period of an irregular term of punishment is considered as the basis for determining the gravity of the punishment, the appellate court deems Defendant A and B as the basis for determining whether Defendant A and B violated the principle of prohibition of disadvantageous change of punishment. Ultimately, Defendant A and B, who have a difference in the seriousness of the punishment, are treated equally in the appellate court. Accordingly, taking the maximum term of an irregular term of punishment as the basis for an objective comparison and determination of the severity of punishment.

(B) Defendants A and B, who are juveniles, were indicted together with accomplices. Defendant A was sentenced to a maximum of five years of imprisonment at the first instance court, a short of one year of imprisonment at the first instance court, and Defendant B was sentenced to a maximum of three years of imprisonment at the first instance court and a short of one year of imprisonment at the first instance court. Defendants A and B appealed only before both Defendant A and B rendered an appeal, and all of them reached the age of 19 years prior to the pronouncement of the appellate judgment. In this case, it is objectively clear that the first instance court’s sentence imposed on Defendant B was more objectively sentenced. However, in a case where the short term of an irregular sentence is considered as the basis for determining the gravity of the punishment, the appellate court deems both Defendant A and B as the basis for determining whether Defendant A and B violated the principle of prohibition of disadvantageous change of punishment. Ultimately, Defendant A and B, who have a difference in the seriousness of the punishment, are treated equally in the appellate court. Accordingly, it cannot be deemed an appropriate means to objectively compare and determine the severity of the punishment.

Rather, as seen earlier, the severity of the punishment can be objectively compared and determined in the same case if it is based on the long-term and short-term intermediate sentences.

(A) In the case above (A) the first instance court’s sentence imposed on Defendant A is more objectively apparent than that imposed on Defendant B, and the appellate court ought to have a serious difference in the standard for determining whether Defendant A and B violated the principle of prohibition of disadvantageous alteration. In a case where the said sentence is based on the long-term and short-term mid-term intermediate punishment, the appellate court shall take four years [=5+3]/2] of imprisonment for Defendant A, and three years of imprisonment for Defendant B [5 + (1+2]/2] as the standard for determining whether each of the provisions of prohibition of disadvantageous alteration are violated.

(B) In the above (B) even in the case, the first instance court’s sentence imposed on Defendant A is more objectively apparent than that imposed on Defendant B, and the appellate court should also have a significant difference in the standard for determining whether Defendant A and B violated the principle of prohibition of disadvantageous alteration. In a case where the standard for determining whether Defendant A and B violated the principle of prohibition of disadvantageous alteration is a long-term and short-term intermediate sentence, the appellate court shall impose three years of imprisonment (=5 + 1/2) on Defendant A, and two years of imprisonment on Defendant B [3 + (3+1)/2] on the basis of determining whether Defendant B violated the principle of prohibition of disadvantageous alteration.

In the end, in a case where the standard for a long-term and a short-term intermediate punishment is considered as the standard for a short-term and short-term intermediate punishment, Defendant A and B, who are different in the seriousness of the punishment, shall be treated in accordance with the difference in the appellate court. Thus, taking the gravity of the punishment as the standard for the long-term and the short-term intermediate punishment as an appropriate means for objectively comparing

(2) If the standard is to determine whether the term of an irregular term is in violation of the principle of prohibition of disadvantageous alteration, the exercise of the defendant’s right to appeal is chilled, and the Juvenile Act does not fit the purpose of adopting the irregular term system, and does not achieve adequate harmony between the principle of responsibility and the principle of prohibition

Where an irregular term of punishment sentenced by the first instance court becomes final and conclusive as is, the enforcement of the sentence may be terminated prior to the arrival of the maximum term of punishment pursuant to Article 60(4) of the Juvenile Act. In such a situation, if the appellate court can render a sentence by the same period of time as that of the irregular term of punishment, the accused would be unable to exercise his/her right to appeal due to threat of substantial disadvantages even if deemed necessary to file reasonable appeals. Considering the same issue as this case, considering the foregoing, if the accused who was sentenced to an irregular term of imprisonment with prison labor for a maximum of 15 years and short term of 7 years at the first instance trial is likely to be sentenced to imprisonment with prison labor for a period of 8 years or longer than that of the minimum term of punishment at the appellate court, the exercise of his/her right to appeal by the accused is forced to decline

Even when considering the circumstances that the Juvenile Act, which provides special measures concerning criminal punishment, is not applicable in cases where a defendant reaches the age of 19 prior to the pronouncement of a judgment in an appellate trial where only the defendant appealeds, the appellate court may not sentence a sentence heavier than that sentenced by the first instance court, in consideration of the status of the juvenile. Nevertheless, in a case where only the defendant appealed, if the appellate court can sentence a regular sentence heavier than that sentenced by the second instance court clearly for an irregular term, the sentence exceeding that sentenced by the first instance court would be sentenced in the appellate court. This would clearly violate the principle of prohibition of disadvantageous alteration.

(3) If the standard is to determine whether an irregular short-term term violates the principle of prohibition of disadvantageous alteration, the exercise of the defendant’s right to appeal may rather be abused, and the Juvenile Act does not fit the purpose of adopting the irregular term system, and it cannot be in harmony with the principle of responsibility and the principle of prohibition of disadvantageous alteration.

In the event that the non-scheduled sentence imposed by the first instance court becomes final and conclusive as is, the Defendant, who has reached the age of 19, is likely to be executed in excess of the short-term sentence unless the enforcement of the sentence is terminated pursuant to Article 60(4) of the Juvenile Act. In such a situation, if the appellate court can only sentence the same regular period as the short-term sentence, it would result in a favorable outcome in exercising the right to appeal even if it is deemed unnecessary to file a reasonable appeal.

In a case where the defendant reaches 19 years of age before the appellate court sentenced a regular sentence, it is no longer applicable to the Juvenile Act, taking into account the status of the juvenile, and there is a need for the appellate court to grant an appropriate discretion to impose reasonable sentencing, taking into account the above circumstances. Nevertheless, if the appellate court can only sentence a minor sentence than an irregular sentence, and even a regular sentence that is the same as an obvious short term, the only sentence that does not fall short of the irregular sentence imposed by the first instance court is to be sentenced at the appellate court. This is the result that the Juvenile Act does not conform to the purpose of adopting the irregular sentence system, and it is not consistent with the principle of responsibility and the principle of prohibition of disadvantageous change.

Therefore, the aforementioned issues may arise when determining whether the defendant violated the principle of prohibition against disadvantageous alteration. This is unreasonable to resolve the lack of grounds by finding the defendant out of the territory where the principle of prohibition against disadvantageous alteration is applied in the process of setting the standards for prohibition against disadvantageous alteration adopted by the prosecutor to prevent the exercise of the defendant’s right to appeal. Furthermore, the issue of this case is that the prosecutor’s appeal is determined based on the prosecutor’s free decision, and there is no room for the court to intervene in determining whether the principle of prohibition against disadvantageous alteration is violated. Article 368 of the Criminal Procedure Act provides that “The principle against disadvantageous alteration is applicable only to the case against which the defendant appealed by the defendant and the case on which the defendant lodged an appeal on behalf of the defendant.” As such, the principle that prohibition against disadvantageous alteration is no longer applicable to the case where the prosecutor filed an appeal on the ground of unreasonable sentencing of the first instance judgment. This case’s issue is that the principle that prohibition against disadvantageous alteration of punishment would be more unfavorable to the defendant, as well as that that it would be unreasonable to the extent that it accords with the principle of prohibition against disadvantageous alteration of punishment.

2) Ultimately, the issue of specifying a regular sentence that can be assessed as substantially equal to an irregular sentence is rather than an issue that can be clearly demonstrated clearly, rather than an issue that can be determined clearly. From this perspective, comprehensively taking into account the following factors, the principle of liability, the principle of prohibition of disadvantageous change, and the purpose of adopting the irregular sentence system by the Juvenile Act, the matter of assessing whether there is a relative friendship as the standard for sentencing at an appropriate appellate court, which can prevent excessive restriction on the exercise of the right to impose discretion appropriate for the principle of responsibility, which is the basic principle of criminal liability, and prevent the decline in exercising the right to appeal, and at the same time prevent the exercise of the right to impose discretion. This is a matter of determining whether a certain degree of punishment existing between the short-term and the short-term period of an irregular sentence, which is a matter of determining an appropriate standard, is not a matter of determining the upper limit of a regular sentence. From this perspective, the issue of violation of the principle of prohibition of disadvantageous change when changing an irregular sentence to a regular one may be considered as the basis of a prolonged or short-term sentence.

3) Unlike this, Supreme Court Decisions 4286Do14 Decided November 10, 1953, Supreme Court Decisions 4292Do242 Decided August 21, 1959, 69Do114 Decided March 18, 1969, Supreme Court Decisions 2006Do734 Decided April 14, 2006, which held to the effect that in a case where the seriousness between the irregular term and the regular term of punishment is aggravated by applying the principle of prohibition of disadvantageous change, such cases as the same purport shall be modified to the extent that they are inconsistent with this Opinion.

C. Determination on the instant case

The court below reversed the judgment of the court of first instance which sentenced Defendant 1 to a maximum of 15 years of imprisonment with prison labor and a short of 7 years of imprisonment with prison labor on the ground that Defendant 1, who was a juvenile at the time of the judgment of the court of first instance, became an adult at the time of the judgment of the court of first instance, and sentenced Defendant 1 to seven years of imprisonment with prison labor on the ground that Defendant 1 cannot be sentenced to imprisonment with prison labor exceeding 7 years of a short term among the irregular period of imprisonment sentenced by the court of first instance in accordance with the principle of prohibition of disadvantageous alteration

However, in light of the legal principles as seen earlier, the standard of determining whether the court below violated the principle of prohibition of disadvantageous alteration in imposing a fixed sentence instead of a maximum term of 15 years and a short term of 7 years, which was sentenced by the court of first instance, should be the mid-term imprisonment of 15 years and the short term of 7 years, namely, imprisonment of 11 years (=(15+7)/2).

Therefore, the court below erred by misapprehending the legal principles as to the prohibition of disadvantageous alteration, which affected the conclusion of the judgment, based on seven years of imprisonment with prison labor sentenced by the court of first instance. The prosecutor's ground of appeal pointing this out is with merit.

2. As to the Prosecutor’s ground of appeal on Defendant 2

Even in cases where a sentence of death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years is imposed on the defendant, a prosecutor of the interpretation of Article 383 subparag. 4 of the Criminal Procedure Act shall not claim the grounds for appeal that the sentence of the court below is too minor, or that the court below erred in the misapprehension of the rules of evidence in finding the premise of sentencing contrary to the defendant's interest in the determination of facts (see Supreme Court Decision 2018Do15035, Nov. 29, 20

Therefore, in this case where the court below sentenced the defendant 2 to 10 years of imprisonment, the prosecutor's ground of appeal that the court below's determination of punishment is too unjustifiable or erroneous in finding facts on the premise of sentencing is not acceptable.

3. As to Defendant 1’s ground of appeal on mistake and misapprehension of legal principle

For the reasons indicated in its reasoning, the lower court convicted Defendant 1 of the facts charged. 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 exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on

4. As to Defendant 2’s ground of appeal

Examining various circumstances that form the conditions for sentencing, such as the Defendant’s age, sex, environment, relationship with the victim, motive, means, and consequence of each of the instant crimes, the circumstances after the crime, etc., as indicated in the records, the lower court’s sentence of imprisonment with prison labor for not less than 10 years against Defendant 2 cannot be deemed extremely unfair, even when considering the circumstances alleged in the

5. Conclusion

Therefore, without further proceeding to decide on the prosecutor’s assertion of unfair sentencing as to Defendant 1’s assertion of unfair sentencing and Defendant 1’s assertion of unfair sentencing, the part on Defendant 1 among the judgment of the court below is reversed and remanded to the court below for further proceedings consistent with this Opinion. The prosecutor’s appeal against Defendant 2 and the appeal by Defendant 2 are all dismissed. It is so decided as per Disposition by the assent of all participating Justices, except for a separate opinion by Justice Park Sang-ok, Justice Min You-sook, Justice Lee Dong-won, Justice Park Jung-hwa, and Justice Kim Seon-soo, and

6. Concurring Opinion by Justice Park Sang-ok, Justice Min You-sook and Justice Lee Dong-won on the issues of this case

A. The Majority Opinion is reasonable to deem that a regular term sentence, which can be assessed as substantially equivalent to an irregular term, is a long-term and short-term fixed term, i.e., an intermediate term, where the Defendant was sentenced as a juvenile at the time of rendering a judgment of the first instance, and only the Defendant appealed, and where the Defendant should reverse the irregular term sentence sentenced by the first instance court and sentence a regular term sentence is to be imposed as he/she reaches the age of 19 prior to rendering a judgment of the appellate court, the standard for determining whether the principle of prohibition of disadvantageous alteration is violated should be the long-term and short

However, in such a case, it is reasonable to determine whether the principle of prohibition of disadvantageous alteration is violated on the basis of a long-term term, not an intermediate sentence, and therefore, the upper limit of a regular sentence that the appellate court may pronounce should be deemed to be the maximum period of non-permanent sentence sentenced by the first instance court. The reasons are

(b) Special measures concerning criminal punishment against juveniles;

The Juvenile Act provides special measures, etc. regarding criminal punishment to ensure the sound growth of juveniles in consideration of the characteristics of juveniles who have abundant possibility of improvement and are placed in a special mental and physical condition due to mental development (see, e.g., Supreme Court Decision 2016Do7112, Jul. 27, 2016).

The Juvenile Act provides that where a juvenile commits a crime punishable by imprisonment for a maximum term of not less than two years as statutory penalty, a sentence of non-term imprisonment shall be imposed by setting a maximum and minimum term within the scope of such punishment (Article 60(1)). In light of the characteristics of the juvenile, if deemed reasonable in light of the characteristics of the juvenile, the sentence may be mitigated (Article 60(2)). A decision on termination of execution may be made upon the decision of an executing agency upon the short term of imprisonment under the Juvenile Act (Article 60(4)), and parole may be granted upon the lapse of one-third of the short term of imprisonment (Article 65). Furthermore, the Juvenile Act provides that a sentence of non-term imprisonment for a maximum term of not more than ten years and a short term of not more than five years shall not exceed five years (the proviso to Article 60(1)). In addition, where a criminal defendant commits a specific violent crime, such as murder, even in this case, the term of non-term imprisonment shall not exceed 15 years and a short term of not exceeding 7 years (Article 4(2).

However, the above special measures regarding criminal punishment under the Juvenile Act do not stipulate that the defendant is currently a juvenile, but it does not include identifying the age as a responsible element, or identifying the characteristics of the juvenile as a matter of responsibility. Therefore, in order for the defendant to be subject to flexible and favorable provisions as above, it should be applicable to the juvenile at the time of trial. Even if the defendant falls under the juvenile at the time of a declaration of the first instance judgment, if the defendant was no longer a juvenile at the time of the appellate trial, the above provision cannot be applied. Thus, the appellate court reverses the judgment of the first instance which sentenced the non-scheduled sentence, and has to make a new regular sentence to be imposed (see, e.g., Supreme Court Decisions 2013Do2935, Apr. 25, 2013; 2016Do7112, Jul. 27, 2016).

The issue of comparison between the irregular term and the regular term of punishment is no longer applicable to the Juvenile Act which was applied at the time of the judgment of the first instance, and the appellate court shall change ex officio the irregular term of the first instance court to the regular term of punishment. As the defendant appealed only by the defendant, the principle of prohibition of disadvantageous change is applied, and a regular term of punishment which is heavier than the irregular term of the first instance court cannot be sentenced. In such a case, interpretation is necessary to harmonize the legislative purpose of the Juvenile Act and the policy purpose of the principle of prohibition of disadvantageous change with the aim of the principle of prohibition of disadvantageous change. In addition, the fact that the defendant, who was sentenced to an irregular term of punishment at the first instance but is expected to become adult during the appellate court, may not be subject to the provisions of the Juvenile Act in the appellate court.

C. Relationship between the principle of non-term balance between punishment and crime and the principle of responsibility

The principle of balance of punishment and punishment that should be balanced between crimes and punishment are based on the responsibility and the principle of accountability that the responsibility should be proportional to the responsibility (see, e.g., Supreme Court Decisions 2018Do8438, Oct. 12, 2018; 2020Do8358, Sept. 3, 2020). Imposition of a penalty exceeding the liability of the defendant is not permissible under the principle of liability.

Unlike the regular sentence, in the case of an irregular sentence that determines and declares a long and short term in consideration of the characteristics of the juvenile who has abundant possibility of improvement, the nature of the irregular sentence still remains a penalty even if the irregular sentence system was introduced in consideration of not only the punishment against the juvenile, but also educational effects. In the case of an irregular sentence, it is not possible to impose any penalty exceeding the responsibility under the principle of accountability, and it is not acceptable to deem that a sentence that meets the responsibility of the defendant is short of the maximum term of punishment for the purpose of correction as it is possible to impose any penalty exceeding the responsibility of the defendant for the purpose of correction. Thus, even if the period of the irregular sentence is long, it shall be deemed that the

From this point of view, a long-term term is meaningful as equivalent to the upper limit of liability. Therefore, it is reasonable to serve as the basis for a long-term period when comparing the severity between the irregular types of punishment. The Majority Opinion argues that it is unreasonable to apply the principle of prohibition of disadvantageous alteration on the basis of five years in both cases where Defendant A was sentenced to a more severe punishment, even if Defendant B was sentenced for a long-term term of five years, three years in prison, five years in prison for Defendant B, and one year in the event that Defendant B was sentenced for a short term of one year, and that Defendant B was sentenced to a more severe punishment. However, in addition to the cases of Defendant C who was sentenced for a long-term of four years in prison and two years in prison, it is reasonable to assess that Defendant B was more severe than the sentence imposed on Defendant B on the same ground as the intermediate types of punishment.

(d) applying the principle of no disadvantage change when changing an irregular term to a regular term.

The principle of prohibition of disadvantageous alteration is a system that comes from policy consideration to enable a defendant to exercise his right to appeal (see Supreme Court Decision 2007Do3448, Jul. 13, 2007). In applying the principle of prohibition of disadvantageous alteration, the determination of whether the sentence was disadvantageously changed to the defendant should be based on the severity of the punishment under the Criminal Act, but it should not be considered individually and formally in light of the overall text of the order, rather than considering the degree of the punishment individually and formally (see Supreme Court Decision 2009Do12967, Feb. 11, 2010, etc.). Whether there is a concern that the exercise of the defendant's right to appeal may be de facto decline due to the possibility of change of the sentence (see, e.g., Supreme Court Decision 2009Do12967, Feb. 11, 2010). Such principle of prohibition of disadvantageous alteration should be interpreted and applied

The sentence of an irregular term is determined and sentenced with a maximum and short term (the main sentence of Article 60(1) of the Juvenile Act). The sentence of an irregular term is determined by only the fact that a sentence of an irregular term is not less than a short term and not more than a long term sentence that is likely to become final and conclusive as enforcement sentence in the future. This is difficult to simply compare the seriousness of an irregular term and a regular term sentence due to

According to Article 60(4) of the Juvenile Act, in cases where an irregular sentence is imposed upon the short term of imprisonment, the Majority Opinion has significanced that the execution of the sentence may be completed by the decision of the executing body of the sentence before the expiration of the long term, and the same regular sentence as the long term sentence is clear. In such a logic, there is a regular sentence that can be evaluated as equal to the short term of the irregular sentence between the short term of the fixed term and the long term of the fixed term of the fixed term of the fixed term of the fixed term of the fixed term of the fixed term of the fixed term of the fixed term of the fixed term of the fixed term of the fixed term of the fixed term of the fixed term of the fixed term of the fixed term of the fixed term of the fixed term of the fixed term of the fixed term of the fixed term of the fixed term of the fixed term of the fixed term of the fixed term of the fixed term of the fixed term of the fixed term of the fixed term of the fixed term of the fixed term of the fixed term of the fixed term of the fixed term of the fixed term of the fixed term of the fixed term of the fixed term.

If it is impossible to simply compare the irregular term with the regular term, such as the majority opinion, the problem of applying the principle of prohibition of disadvantageous change when changing the irregular term to the regular term term is rather than the problem of finding a regular term that can be evaluated as substantially equivalent to the irregular term, and setting a reasonable standard so that the exercise of the defendant's right to appeal can not be avoided, rather than the problem of finding a regular term that can be evaluated as substantially equal to the irregular term, and the issue of setting the upper court's upper limit of the punishment sentenced by the appellate court. Furthermore, considering the characteristics of the irregular term that sets

E. Feasibility of determining whether the principle prohibiting disadvantageous changes was violated on a long-term basis

On July 24, 1958, the Juvenile Act of the Republic of Korea (hereinafter referred to as the "Juvenile Act") provides that when a person imposes an irregular sentence on a juvenile, a maximum term shall not exceed ten years, and a short term shall not exceed five years, and the content thereof also lead to the current law. Even if the Specific Crimes Act is applied to some crimes, the maximum term and the maximum term shall be 15 years and 7 years, respectively. However, our society has experienced a lot of changes and serious crimes, and there have been an amendment of various Acts to impose an appropriate penalty that meets the responsibility for such crimes. The Criminal Act was amended on April 15, 2010, to raise the maximum term of a limited term to thirty years, and to raise the maximum term of a limited term to fifty years, if a punishment is aggravated. A special Act was enacted for a serious crime and the statutory penalty is adjusted to a higher level.

Accordingly, there is a problem that the scope of a long-term and short-term punishment is excessively broad for juveniles who have committed a serious crime as a result of sentencing on a short-term and short-term basis corresponding to the upper limit of the Juvenile Act or the Specific Crimes Act. In a case where the Defendants of the similar age group jointly committed a crime, only some of the defendants constitute juveniles and are subject to the Juvenile Act, thereby causing imbalance in sentencing between them. In such a situation, if the Defendant, who was a juvenile in the first instance trial, has reached an adult age in the appellate trial, it is reasonable to ensure that the sentencing meeting their respective responsibilities, in principle, should be determined in accordance with the same standard for accomplices who were subject to the same Act at the appellate trial stage. Even in cases where only the Defendant appealed and only applies the principle of prohibition of disadvantageous change

From this point of view, we agree with the majority opinion that if determining whether the principle of prohibition of disadvantageous change is violated based on the short-term period of punishment, it would be disadvantageous for the defendant to file an appeal, which might be abused by the defendant's right to appeal, the Juvenile Act does not fit the purpose of adopting the principle of liability and the principle of prohibition of disadvantageous change.

Furthermore, the Majority Opinion also agrees with the purport of the Majority that: (a) the ordinary type of punishment sentenced by the appellate court is within the period of execution of the sentence reasonably anticipated by the Defendant; (b) whether the exercise of the right to appeal is unlikely to decline; and (c) whether the Defendant’s responsibility is consistent with the Majority Opinion to determine whether the principle of prohibition of disadvantageous alteration is violated; (d) however, the Majority Opinion differs from the Majority Opinion in that it is reasonable to determine the violation of the principle of prohibition of disadvantageous alteration on the basis of

According to statistical data for the ten-year period from 2009 to 2018, the Defendant who was sentenced to an illegal sentence is deemed to have been able to reasonably expect the execution of the sentence. In addition, the actual execution of the sentence among juvenile inmates leads to 60.21% of the total term imprisonment. Even in cases where parole is granted without actual execution of the sentence, barring any special circumstance, the execution of the sentence itself does not fall short of the maximum term, and is distinguishable from the case where an adult sentenced to an identical regular sentence with the maximum term is provisionally released (see Article 66 of the Juvenile Act). Considering these circumstances, the period of execution of the sentence that the Defendant who was sentenced to an illegal sentence should reasonably expect is superior to the maximum term.

Meanwhile, Article 65(1) of the Military Service Act provides that “a person eligible to be transferred to supplemental service or to be transferred to wartime labor service and prescribed by the Presidential Decree as a convicted prisoner” and Article 136(1)1(a) of the Enforcement Decree of the Military Service Act provides that “a person who is sentenced to imprisonment with or without prison labor for not less than six months but not more than one year and less than six months” refers to a person who is sentenced to imprisonment with or without prison labor for a period of not less than one year and less than six months, shall be subject to the application of the term where the sentence is sentenced for a prolonged and short term as an irregular term of imprisonment.” It can be confirmed that,

In the event that an irregular term is sentenced by fixing a maximum and minimum term, deeming that the maximum term constitutes a liability type is consistent with the principle of liability, and that it is appropriate as a standard for comparison of seriousness of the maximum term corresponding to the upper limit of liability as above.

In addition, it will be decided whether to file an appeal in consideration of the fact that the Juvenile Act is no longer applicable in the appellate court as the defendant who is scheduled to do so at the appellate court, and that the period of non-permanent punishment constitutes a responsible penalty and the long-term execution can be enforced if the period of non-permanent punishment is finalized.

Therefore, in the case where the defendant was sentenced as a juvenile in the first instance court but the appellate court has to be sentenced to a regular sentence as an adult, the appellate court should determine whether the long-term period corresponding to the execution period reasonably anticipated by the defendant as a responsible type violates the principle of prohibition of disadvantageous change. It is reasonable to allow the appellate court to re-determine a proper sentence that meets the defendant's responsibility by exercising its discretion of sentencing by taking into account both characteristics of the illegal term and the long-term and short-term periods within the scope of not more

In light of various circumstances, such as the purport of the principle of prohibition of disadvantageous change, criteria for determining disadvantage change, the purpose of the provisions of the Juvenile Act, the specific contents thereof, and the relationship with the principle of liability, such conclusion shall not be deemed to violate the principle of prohibition of disadvantageous change.

F. Sub-decision

When comparing the severity of punishment according to the principle of prohibition of disadvantageous alteration between the irregular term and the regular term of punishment, it is reasonable to determine whether the principle of prohibition of disadvantageous alteration has been violated by comparing the period of the irregular term of punishment and the regular term of the irregular term of punishment. Therefore, the judgment of the court below, which judged whether the principle of prohibition of disadvantageous alteration has been violated based on the short term, not the long term of the irregular term of punishment sentenced by the court of first instance, erred by misapprehending the legal principles as to the principle of prohibition of disadvantageous alteration, thereby affecting the conclusion of the judgment. As such,

7. Dissenting Opinion by Justice Park Jung-hwa and Justice Kim Seon-soo as to the instant issues

A. The majority opinion held that in a case where the defendant was sentenced as a juvenile at the time of the judgment of the court of first instance and only the defendant appealed, the defendant reversed the irregular term sentence sentenced by the court of first instance prior to the judgment of the court of first instance and sentenced a regular sentence, and the standard for determining whether the principle of prohibition of disadvantageous alteration has been violated is erroneous in the misapprehension of legal principles as to the principle of prohibition of disadvantageous alteration, which affected the conclusion of the judgment, on the ground that the long-term and short-term fixed term of the irregular term and the short-term fixed term of the ordinary term, i.e. the middle

However, in applying the principle of prohibition against disadvantageous changes, in cases where the gravity between the irregular term and the regular term of punishment is aggravated, it was a consistent opinion of the Supreme Court that the appellate court cannot sentence a punishment exceeding the irregular term of punishment in comparison with the irregular term of punishment for a short term of 70 years since November 10, 1953 (see, e.g., Supreme Court Decisions 4286Do14, Nov. 10, 1953; 429Do242, Aug. 21, 1959; 69Do114, Mar. 18, 1969; 2006Do734, Apr. 14, 2006). Accordingly, the above opinion is reasonable, the grounds for and conclusion of the majority opinion cannot be agreed.

B. Grounds to determine whether the principle of prohibition of disadvantageous alteration was violated based on the short term of an irregular sentence

1) In a case where a defendant appealed and an appeal on behalf of the defendant, the appellate court may not sentence a more severe punishment than that of the original judgment (Articles 368 and 396(2) of the Criminal Procedure Act). The principle of prohibition of disadvantageous alteration is a system established from policy consideration to enable the defendant to exercise his right to appeal (see Supreme Court Decision 2007Do3448, Jul. 13, 2007). Determination as to whether a sentence imposed is modified disadvantageous to the defendant in the application of the principle of prohibition of disadvantageous alteration should be based on the severity of punishment under the Criminal Act, but it should not be considered individually and formally, and it should be determined by considering whether the sentence is not practically disadvantageous to the defendant in light of the overall text (see Supreme Court Decision 2009Do12967, Feb. 11, 2010). The principle of prohibition of disadvantageous alteration is not only the principle of unreasonable treatment between the two punishments, but also the case where the defendant is deemed disadvantageous to the defendant in light of the most unfavorable condition before and after the alteration of the sentence.

2) The Juvenile Act provides for special measures, etc. against criminal punishment in order to ensure that juveniles grow up soundly by taking into account the characteristics of juveniles who have abundant possibility of improvement in the process of forming personality and are placed in a special mental and physical condition accompanied by mental development (see, e.g., Supreme Court Decision 2016Do7112, Jul. 27, 2016). Accordingly, the Juvenile Act provides that where juveniles commit a crime corresponding to a limited term of two or more years under statutory punishment, a maximum and short term sentence shall be set within the scope of such punishment to be sentenced (see, e.g., Article 60(1) main sentence of the Juvenile Act).

Where an illegal sentence has been pronounced, the possibility of the release of the accused or the termination of the execution of the sentence will begin on the basis of the short term. Where it is deemed that the criminal record of a juvenile whose short term has passed is good and that the correctional purpose has been achieved, the head of the agency executing the illegal sentence against the juvenile may terminate the execution of the sentence (Article 60 (4) of the Juvenile Act), and where the parole has been granted upon the expiration of one-third of the short term, the parole may be granted under the direction of the public prosecutor of the competent public prosecutor’s office (Article 65 of the Juvenile Act). (Article 65 of the Juvenile Act)

If the Defendant was sentenced as a juvenile in the first instance court and was sentenced to an irregular sentence, the possibility of release or termination of sentence starting from the short term as seen above is granted. In such a case, only the Defendant appealed and the principle prohibiting disadvantageous change applies to the Defendant, but the Defendant becomes adult and the first instance court should reverse and sentence a regular sentence at the appellate court, if the Defendant declares a regular sentence exceeding the short term sentenced in the first instance court, then the possibility of release or termination of sentence would be deprived, and thus, would be disadvantageous to the Defendant. Therefore, it is reasonable to interpret that the sentence exceeding the short term of the irregular sentence cannot be imposed in the appellate court, compared to the short term and the regular sentence during the irregular term, in cases where the gravity between the irregular term and the irregular term, while applying the principle prohibiting disadvantageous change.

3) This view is a firm attitude of the Supreme Court that has been over 70 years. As such, it is difficult to find a reasonable ground to change the comparison method of the previous precedents established as a standard to consider whether the defendant and prosecutor who have been sentenced to an irregular sentence for a long time and having determined whether to file an appeal. Therefore, it is unreasonable to the Concurring Opinion that it should be based on the majority opinion that it should be based on an interim sentence for an irregular term and that it should be based on the period that is disadvantageous to the defendant. The Concurring Opinion further undermines the principle of prohibition of disadvantageous change and the purport of the Juvenile Act as an interpretation unfavorable

4) The Majority and the Concurring Opinion recognize that the exercise of the Defendant’s right to appeal may be abused inasmuch as the standard for determining whether the principle of prohibition of disadvantageous alteration is violated is unconditional to the Defendant. The Majority and the Concurring Opinion recognize that the principle of prohibition of disadvantageous alteration is a major principle of the criminal law to prevent the exercise of the Defendant’s right to appeal against the Defendant. Nevertheless, the Majority and the Concurring Opinion purport that the principle of prohibition of disadvantageous alteration, which is the major principle of the criminal law, should be interpreted in the direction unfavorable to the Defendant to prevent abuse of the Defendant’s right to appeal, is contrary to the fundamental purport of the principle of prohibition of disadvantageous alteration. In addition, as there is concern for the Majority and the Concurring Opinion to judge whether the principle of prohibition of disadvantageous alteration is violated based on the short term of irregular punishment, it cannot be concluded that the exercise of the Defendant’s right to appeal against the Defendant would be abused without the final judgment of the appellate court. In that process, the Prosecutor also becomes more likely to appeal against the Defendant. Accordingly, the Defendant’s right to appeal against the lower court’s decision is unreasonable.

C. Issues in comparison with the Majority Opinion and the Concurring Opinion

1) The Majority Opinion does not serve as an appropriate standard to objectively compare and determine the disadvantage of an irregular sentence depending on the severity of the punishment. As such, the Majority Opinion deems that: (a) the prolonged and short-term fixed term of an irregular term falls under a regular term that can be evaluated as substantially equivalent to the irregular term, i.e., the intermediate term, and the gravity of the punishment based thereon; (b) however, it does not necessarily mean that all the objective weight of an irregular term can be computed formally; and (c) there is no sufficient ground to recognize that the intermediate term is deemed as substantially equal to the irregular term. It is difficult to view that the method is a point where one branch of the prolonged and short term of an irregular term is established at will to arbitrarily indicate the weight of the irregular term term, and that the method is superior to that of the previous precedents.

2) The Concurring Opinion states that the severity of punishment should be compared on the basis of the long-term execution, in general, on the grounds that the sentence is expected to be executed until the long-term. The Concurring Opinion presents as the basis of statistical data according to practical practice of sentence execution, including that the decision on termination of sentence is rarely not to be made with respect to juvenile inmates. However, such data alone does not confirm that the general estimated execution period against the defendant who has been sentenced non-term imprisonment reaches a long-term term. Nevertheless, comparison is the most unfavorable way to the defendant. Even if such execution is carried out, this is based on the operation of the Juvenile Act which provides that the practice of the execution of punishment is not only a long-term period but also a short-term implementation and consideration in the execution of the sentence, and thus, it is not reasonable to apply the principle of prohibition of disadvantageous change based on the long-term implementation of the Act. The Concurring Opinion emphasizes that there is possibility of executing the sentence even if short-term implementation, and it is difficult to accept it as unfavorable to the defendant.

3) The comparison method with the majority opinion and the separate opinion is inconsistent with the consistent position of the Supreme Court that applied the principle of prohibition of disadvantageous alteration to the probation. The Supreme Court has consistently held that the exclusion of the probation from the suspension of execution is a disadvantageous alteration with the sentence imposed by the judgment on the suspension of execution in relation to the application of the principle of prohibition of disadvantageous alteration to the probation (see, e.g., Supreme Court Decision 2016Do1131, Mar. 24, 2016). At the same time, the Supreme Court has consistently held that the suspension of execution is not permissible against the principle of disadvantageous alteration (see, e.g., Supreme Court en banc Decision 66Do1319, Dec. 8, 196; Supreme Court Decision 201Do11700, Apr. 13, 2012; Supreme Court Decision 2018Do9342, Jul. 24, 2019).

The above view of the Supreme Court can only be seen as contradictory if it appears that the principle of prohibition against disadvantageous change is contradictory to the defendant. This is because the Supreme Court’s opinion is that one year and six months of imprisonment with prison labor, and one year and six years of suspended sentence, which is disadvantageous to the defendant. However, deeming the Supreme Court’s opinion contradictory to the Supreme Court’s opinion is nothing more than a misunderstanding of the principle of prohibition against disadvantageous change in the principle of objectively unreasonable principle between two punishments. It is the one year and one year and six months of imprisonment with prison labor, one year and six years of suspended sentence, and one year and three years of suspended sentence, which is more objectively unfavorable to the defendant. It is also a matter that cannot be determined on the basis of the principle against disadvantageous change in the principle against the defendant. If the appellate court determines the principle against disadvantageous change from the perspective of “in substance disadvantage to the defendant,” the Supreme Court’s above precedents can be sufficiently understood. If it is more unfavorable to the defendant when the suspended sentence is changed to a suspended sentence, it can be evaluated that the suspended sentence would not be invalidated or invalidated.

This is in contact with the position and context of the previous Supreme Court that determines whether the defendant violated the principle of prohibition of disadvantageous alteration on the basis of the short term of punishment, taking into account the possibility of unfavorable treatment, and the method of the majority opinion and the concurring opinion is inconsistent with such consistent

4) In principle, the principle of prohibition of disadvantageous change can only be applied to situations where it is difficult to resolve only when understanding the standard for objectively comparing and judging the severity of punishment. ① A punishment for a maximum term of five years, a punishment for a short term of three years, and a punishment for a short term of four years and six months, and a punishment for a short term of three years and six months, which is disadvantageous to the defendant? According to the Majority Opinion comparing both cases based on interim sentences, it is equal to four years in both cases. ① A punishment for a short term of three years is changed to (2) or (2) a punishment for a short term of three years. According to the Concurring Opinion comparing the principle of prohibition of disadvantageous change with a long term of three years, both changes to a punishment are contrary to the principle of prohibition of disadvantageous change. ② A change to a punishment is contrary to the principle of prohibition of disadvantageous change to (2) a change to a punishment for a long term or a short term of three years, which is disadvantageous to the defendant, if any change to a punishment is made disadvantageous to the defendant.

(d) Relation to the principle of responsibility.

1) The principle of balance between crimes and punishment and the principle of accountability that the principle of punishment should be based on the responsibility and proportionality is the basic principle of criminal liability (see, e.g., Supreme Court Decisions 2018Do8438, Oct. 12, 2018; 2020Do8358, Sept. 3, 2020).

2) In a case where an irregular sentence is pronounced, the sentence of the entire section ought to be deemed to be within the scope of the punishment that conforms to the responsibility. This is because, instead, if only one branch is a punishment that conforms to the responsibility, the entire section, excluding the specific branch, becomes meaningful as a punishment that does not fit the responsibility. In such a case, the sentence of a punishment for a section that does not fit the responsibility, which in turn goes against the principle of the balance of crimes and the principle of the responsibility. Since the short-term sentence falls within the scope of the punishment that is proportional to the liability, the short-term sentence is subject to the principle of the responsibility and the principle of the prohibition of disadvantageous alteration is entirely problematic.

3) In applying the principle of prohibition against disadvantageous change, only a regular sentence which uppers the short term to the defendant cannot be deemed as an unfair result that is not scheduled under the Criminal Procedure Act in relation to the principle of liability. Imposition of a penalty exceeding the responsibility to the defendant pursuant to the principle of principle of liability is not permissible. However, there is no choice but to impose a heavy restriction on the defendant in accordance with the principle of prohibition against disadvantageous change. This should be the result of the adoption of the principle of prohibition against disadvantageous change. If only the defendant appeals, the appellate court may not impose a sentence heavier than that of the judgment of the first instance even in cases where the defendant's liability is changed due to the occurrence of the death of the victim who has suffered a fatal injury, or where the amendment of a sentence heaviers the defendant's liability is made, the appellate court cannot impose a sentence heavier than that of the judgment of the first instance (see Supreme Court Decisions 79Do2105, Mar. 25, 1980; 2014Do2714, Aug. 2014, etc.).

(e) Prosecutor's possibility of appeal;

The principle of prohibition of disadvantageous change does not apply to all cases of a defendant's appeal, but applies only to cases where only the defendant has lodged an appeal or appealed for the defendant. If a prosecutor files an appeal against the defendant, the principle of prohibition of disadvantageous change is not applied, and it is possible to change a sentence heavier than that of the first instance court in the appellate court. In this regard, it is unreasonable to discuss whether the principle of prohibition of disadvantageous change causes interference with the proper operation of the criminal justice

In the foregoing example cases, the prosecutor may file an appeal to correct the error of the first instance court by excluding the application of the principle of prohibition of disadvantageous alteration, and to sentence sentence that meets the defendant's responsibility. The Criminal Procedure Act was designed in a way that guarantees the defendant's right to appeal through the principle of prohibition of disadvantageous alteration, while ensuring the defendant's right to appeal through the public prosecutor's decision, thereby imposing a sentence that meets

As the Supreme Court has established to apply the principle of prohibition of disadvantageous change based on the short-term term, and the defendant will decide on whether to file an appeal accordingly. Thus, if a case is valid only when a defendant has been sentenced to a regular sentence exceeding the short-term term in the appellate court, a prosecutor must examine it. The failure of the prosecutor in this case seems to be due to the fact that the appellate court did not have the intention to accept a regular sentence corresponding to the short-term sentence, or the prosecutor did not recognize the firm precedents of the Supreme Court. However, in any case, it is obvious that the reason why the Supreme Court has established a firm view for the benefit of the defendant can not be a reason for changing the established previous precedents for the benefit of the defendant. Nevertheless, in order to punish the defendant heavierly while changing the established previous precedents, the possibility of the commencement of release and the termination of the execution of sentence based on the short-term sentence was granted by the first instance court, and only the defendant has violated the procedural status of the defendant that should be treated in accordance with the principle of prohibition of disadvantageous change, and thus, the purport of the Juvenile Act to declare the sentence.

F. Sub-decision

For the foregoing reasons, the lower court’s determination that determined the sentencing of Defendant 1 by applying the principle of prohibition of disadvantageous alteration based on the short term of the irregular sentence sentenced by the first instance court is justifiable, and there was no error in misapprehending the legal doctrine on the principle of prohibition of disadvantageous alteration

With respect to the issue of this case, the Supreme Court cannot reverse the legal doctrine established as close as 70 years and cannot agree with the majority opinion that damages the purpose of the Juvenile Act with respect to the prohibition of disadvantageous change, one of the important principles for guaranteeing the defendant's rights by using rhetoric logic. For the foregoing reasons, we express my dissent from the majority opinion.

8. Concurrence with the Majority by Justice Lee Ki-taik

A. In a case where determining whether the principle of prohibition against disadvantageous change has been violated between an irregular term and a regular term, solely on the ground that it is the position of the Supreme Court near 70 years and that it is appropriate to compare the short term and a regular term of the irregular term with that of the irregular term is the position of the Supreme Court, it cannot be readily concluded that such determination has validity as a legal doctrine appropriate to regulate the social situation at the present time. In order for the Supreme Court’s position maintained for a long time to be recognized as still reasonable legal doctrine, it is necessary to undergo a process of continuously analyzing and re-marating validity in the process of changing social structure and changing citizens’ awareness. These processes, only repeated Supreme Court’s determination through such a process is reasonable as a consistent legal doctrine with which the period of time has expired. However, the Supreme Court’s position on the standard of determining whether the principle of prohibition against disadvantageous change in the irregular term is violated, has a relatively high level of criticism and practice. If so, not only before 70 years but also at the present time, the Majority Opinion determined that the standard of prohibition against disadvantageous change in the past term is unreasonable.

B. As the situation where a harmonious legal order should be formed between a large number of interests or norms is met, we need to take into account what is the essence of the problem. In practice, it is not desirable to address the problem as a matter of simple two-party choice by putting the clarity of the grounds without considering it in detail. If the issue of this case is considered as a matter of bilateral choice, the resolution can be relatively simple, and the majority opinion that the issue of this case should be the basis for the prolonged and short term. However, in a case where interests or norms are cross-congested and connected at several stages, there is a variety of views and evaluations depending on the method of approaching or analyzing them, so it is difficult for either party to answer “reasonable” or “reasonablely”. The majority opinion sought a better answer, which is not the sole answer without prejudice to the nature of the problem.

C. There is an example presented by the Majority Opinion regarding the position that considers the nature of the issue that ought to be harmonized in the past as a simple matter of choice among the majority opinions with respect to the position that intends to approach the issue that requires a harmonious legal order among the majority opinions. In the process of the enactment of the Civil Execution Act, there is a conflict between the position that the execution creditor should be given priority when determining the distribution ratio among the general creditors. There is no right to preferential dividends and the position that the execution creditor should not be given priority to the execution creditor, which is well known through theories and foreign laws. However, this is not a problem that can find the answer that one extreme group is absolutely correct, similar to the issue of this case. From the perspective of the distribution ratio preferentially to the execution creditor, the priority principle should be given 10% priority, the principle of equality should be given 0% priority to the creditor, the degree of harmonization between the 00% to 10% and 100% interest rate, and there is no reasonable ground for exclusion from the subject of the amendment of the Civil Procedure Act.

D. In the process of evaluating the relative friendship between the long and long-term term or the short-term or the short-term and the short-term medium, specific grounds for determining that the long-term or the short-term short-term and the short-term are relatively superior to the short-term or the short-term, are already indicated in the Majority Opinion in detail. As such, in the concurring opinion, the Dissenting Opinion and the Concurring Opinion argues that it is inappropriate to set the two arguments based on the long-term or the short-term term of the non-term and the short-term. However, it can be the same ground for deeming that it is inappropriate to set the gap between the short-term and the short-term “the long-term” as one of the “the short-term and the short-term” as one of the “the

1) The principle of prohibition of disadvantageous alteration is to determine whether a sentence imposed in the appellate court is a heavier punishment, by objectively comparing the severity of the punishment existing between the original judgment and the sentence sentenced in the appellate court. As such, objectively comparing the severity of the punishment existing in the appellate court and the sentence sentenced in the appellate court ought to be inevitably accompanied in applying the principle of prohibition of disadvantageous alteration. The Dissenting Opinion and the Concurring Opinion’s position viewing the principle of prohibition of disadvantageous alteration purport that there is no correlation between the principle of prohibition of disadvantageous alteration and the principle of prohibition of disadvantageous alteration, which stipulates the principle of prohibition of disadvantageous alteration. This is inconsistent with the language and text of Article 368 of the Criminal Procedure Act, which

2) The Dissenting Opinion argues that the Majority Opinion is not consistent with the Supreme Court’s position in determining whether a sentence is disadvantageously changed between the sentence and the suspended sentence. However, whether a sentence has been disadvantageously changed or not should be determined based on the order of the Supreme Court, and it should not be determined on the basis of unpredictable circumstances in the future that do not have been determined by the appellate court. In the event that a sentence becomes final and conclusive, in principle, the Defendant is deprived of his freedom of body through the sentence sentenced, while the sentence becomes final and conclusive, the Defendant is not deprived of his freedom of body through the sentence sentenced in principle. In the event that a sentence becomes final and conclusive, in principle, the sentence is deemed as more disadvantageous to the Defendant than the sentence sentenced in the suspended sentence. Ultimately, when determining based on the sentence sentenced, it is difficult to present the case where the Defendant who was sentenced in the first instance trial is lodged with the sentence sentenced in the suspended sentence, and filing an appeal on the grounds that the sentence imposed in the suspended sentence is too excessive. Furthermore, considering this point of view, it is questionable that the Dissenting Opinion that it accords with the Dissenting Opinion Opinion Opinion Opinion that points out validity.

E. As examples of the instant case, among the punishments existing between the 15-year period of non-permanent sentence sentenced by the first instance court and the 11-year period of not less than 7 years, only the 11-year period may not be determined as a standard for determining whether the principle of no disadvantageous alteration was violated. If it may be deemed appropriate to derive a harmonious outcome in line with the situation in which the standard is intended to be resolved, it may be established as a standard for eight years, nine years, 10 years, 12, 13 years, 14 years, and 14 years. However, considering the period of punishment execution that the Defendant who was sentenced in the first instance court could reasonably anticipate, it is difficult to evaluate that the period of non-scheduled sentence is relatively superior to the 11-year period of intermediate sentence, 8 years, nine years, 10 years or 12 years, 13 years or 14 years, or 114 years, it is difficult to find any reasonable and reasonable grounds otherwise.

In order to terminate the execution of a sentence against the defendant who was sentenced to an illegal imprisonment, it is necessary to make a public prosecutor’s decision on the fact that the performance of the sentence is good and that the purpose of correction is achieved (Article 60(4) of the Juvenile Act). The majority opinion held that it is appropriate to view that the period of the execution of the sentence that can reasonably expect the defendant who was sentenced to an illegal imprisonment falls under the period of the illegal imprisonment and the short and long-term intermediate punishment, on the premise that the system of the decision to terminate the execution of the sentence, which is provided by the Juvenile Act, is being operated in conformity with

The Concurring Opinion argues that, through statistical data from 2009 to 2018, there was almost no decision to terminate the execution of a sentence against a juvenile sentenced, and that the average rate of imprisonment to a maximum of 60.21% of the juvenile sentenced without parole is 60.21%, the period of execution of a sentence reasonably anticipated by the defendant sentenced to an illegal sentence can be deemed close to a long-term period. However, the practice of the execution of a sentence is not consistent with the legislative purpose of the Juvenile Act, which provides special measures regarding criminal punishment, to assist the sound growth of the juvenile. The court that forms a legal order related to the Juvenile Act, takes into account whether the practice of the execution of a sentence is operated in a way suitable for achieving the legislative purpose of the Juvenile Act, and, if not, it is difficult to accept the allegation that there is no further distinction from the legislative purpose of the Juvenile Act, when determining whether there was a violation of the principle of prohibition of disadvantageous change in the execution of a sentence.

Ultimately, the period of execution of a sentence that can reasonably be expected by the Defendant who was sentenced to an irregular sentence ought to be evaluated in a balanced manner by taking into account the factors such as “sexuality of the Defendant” and “decision on the discretion of the prosecutor”, which are extremely difficult to predict as a situation that arises in the future. In this respect, it is more appropriate to evaluate that the Defendant who was sentenced to an irregular sentence may be expected to have completed the sentence by the prosecutor’s discretionary decision on the same possibility from the time when the short term expires to the time when the long term of the punishment arrives.

F. Even if educational elements are strong, the essence of an indeterminate sentence is penal punishment. In addition, in light of the variability of juveniles, the purpose of correction and rehabilitation by education lies in relation to situations that arise in the future, and it is impossible for the fact-finding court that declares an indeterminate sentence to accurately predict it at the time of the sentence. The fact-finding court that declares an indeterminate sentence must be overly limited to the elements of correction purpose, and shall ensure that the “explosive” is excessively limited from the short-term to the long-term period. In the same regard, in a case where a law enacted and amended to regulate the maximum and short-term penalties, legislative discretion should be exercised to ensure that the fact-finding court does not have difficulty in determining an appropriate punishment within the limit of the principle of responsibility, which is the basic principle of criminal justice. The specific violent crime applicable to this case is not only a maximum of 15 years and the long-term punishment for juveniles who committed specific violent crimes, such as murder (long-term, 15 years, and 7 years), but also a maximum of 5 years and the short-term period determined.

G. Meanwhile, although there is no direct relation with the instant case, I would like to point out the situation in which the principle of prohibition of disadvantageous alteration cannot work properly in other aspects to which the principle of prohibition of disadvantageous alteration is applied.

The majority opinion of the Supreme Court en banc Order 2016Hu318 Decided June 16, 2016 determined that “When a general citizen commits a concurrent crime under each subparagraph of Article 1(4) of the Military Criminal Act (hereinafter “specific military crime,” other crimes, etc.) and a general crime are concurrent crimes under the former part of Article 37 of the Criminal Act, a military court shall have jurisdiction over a specific military crime and a general court shall have jurisdiction over a general crime under the jurisdiction of a general court.” In other words, the defendant who is a soldier committed a specific military crime and a general crime under Article 2 of the Military Court Act, was indicted as concurrent crimes to the military court of the first instance, which is the first instance, and only the defendant appealed while the defendant was discharged from military service while the defendant was discharged from military service, the military court still has jurisdiction over a specific military crime, but there is no jurisdiction over a general court with regard to a general crime. However, the ruling that a person who committed a criminal trial has divided several offenses into several areas of criminal jurisdiction into several types of crimes resulting in relation to the foregoing principle of prohibition of disadvantage.

For instance, in the above case, the general military court, which is the first instance court, sentenced one year of imprisonment to the defendant, and appealed only the defendant. According to the en banc decision above, the defendant was discharged from military service while the appellate court is still serving. According to the above en banc decision, the military court of the second instance sentenced a specific military crime to the military court of the second instance, and the general court of the second instance to the transfer of the specific military crime is sentenced to the judgment. However, first, when the military court sentenced eight months of imprisonment to a specific military crime, and the judgment becomes final and conclusive, the general court should sentence within the scope of four months after deducting the sentence of the military court of the second instance which first sentenced to the first instance court of the first instance from the principle of prohibition of disadvantageous change (i.e., one year - eight months) in relation to the principle of prohibition of disadvantageous change? If the military court first sentenced one year of imprisonment in prison and the judgment becomes final and conclusive,

In addition, if the military court first rendered a sentence of eight months in prison, but the judgment has not yet become final and conclusive, whether the general court should sentence the sentence within the scope of one year, which is the whole sentence of the first instance court, without being bound by the judgment of the military court, or within the scope of four months (i.e., one year and eight months). In this case, if bound by the judgment of the court first sentenced, whether the court first given the superior position of the court which made the judgment even though the legal grounds are mutually equivalent to each other? Whether the above en banc Decision can answer any question in relation to the prohibition of disadvantageous change? There is no need to give a proper answer.

In close sense, the above en banc decision, as seen above, causes a big confusion in the application of the principle of prohibition of disadvantageous alteration, and thereby, brought about the result that the exercise of the defendant’s right to appeal may decline by lowering the predictability of the sentence to be pronounced in the second instance court. This may not escape criticism that infringement of the right to a trial guaranteed by the Constitution. In addition, according to the above en banc decision, the first instance judgment may be divided into two separate organizations chain military courts and general court rulings, which are not relevant to the organization and operation of the appellate court, and the criminal procedure may not be entirely anticipated. Accordingly, there may be a variety of barriers that conflict with the basic principles of criminal justice other than the principle of prohibition of disadvantageous alteration.

Chief Justice Kim Jong-soo (Presiding Justice)