A. The case reversing the judgment below on the ground that the fact-finding at the court below was in violation of Article 7-2 of the Court Organization Act after remanding

B. Whether the principle of prohibition of disadvantageous alteration applies to the judgment of the Supreme Court prior to remand and the judgment of the court below after remand

A. After remanding the case, adding the evidence of conviction to the court below is only the appellate court and the court of final appeal against the accomplice, which is the same as the judgment of the court of first instance against the accomplice as the evidence of the court of first instance. If the fact-finding of the crime is identical with the judgment of the court of first instance, it cannot be deemed as a new evidence, and eventually, the court below found the defendant guilty of the crime in the judgment of remand only by the evidence which judged that the judgment of first instance cannot be used as evidence of guilt in the judgment of remand, and the judgment of the court of first instance is unlawful as binding on the lower court in

B. In a case where the judgment of the court of final appeal is reversed, and the case is remanded to the appellate court due to the appeal by only the defendant, and the judgment of the court below is pronounced guilty after remand, the court of final appeal shall not be sentenced to more severe punishment than that of the judgment of the appellate court reversed, as the principle prohibiting disadvantageous change is applied to the relation with

(a) Article 7 of the Court Organization Act;

A. Supreme Court Decision 84Do410,84Do67 delivered on April 24, 1984, Supreme Court Decision 64Do298 delivered on September 17, 1964, Supreme Court Decision 79Do2105 delivered on March 25, 1980

Defendant

Defendant

Attorney Park Byung-hee et al.

Gwangju High Court Decision 83No37,71 (Consolidated) decided January 29, 1986

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

We examine the grounds of appeal.

1. 2-A at the time of the original trial against the defendant, the defendant and his defense counsel (appointed) asserted the violation of the rules of evidence against the facts constituting the crime, but the above facts constituting the crime can be acknowledged by considering the prosecutor's statements in the suspect interrogation protocol against the non-indicted 1, 2, and 3, which were admitted as evidence by the court below. Thus, it cannot be viewed that the illegality such as the theory of lawsuit is found.

2. The defendant and his defense counsel's grounds of appeal on the criminal facts of the 1st trial against the defendant shall be determined ex officio prior to the finding of the grounds of appeal.

According to the records, the party members reversed the judgment of the court below prior to the remanding of this case (Seoul High Court Decision 81No198 delivered on May 29, 1981, and 81) for the following reasons. In other words, the defendant consistently denies the above facts charged by the police until the new decision of the court below. Thus, the defendant's statements in the suspect examination protocol or the defendant's statements in the open court cannot be evidence to acknowledge the above facts charged. The defendant's statements in the first trial court of the witness 4 and the prosecutor's interrogation protocol prepared on the same person are not consistent with the records. Thus, the prosecutor's office's statements are not inconsistent with the above facts that all the crew members were involved in the interrogation of this case, and it is hard to see that the defendant's statements were inconsistent with the witness's statements in the first trial court of the court of first instance, and thus, the defendant's motive to keep the smuggling of this case from being sealed by the defendant through his testimony in the first trial court of the court of first instance, and distributed the defendant's 27 days.

After the above remand judgment, the court below examined the witness of the non-indicted 4, 5, and 6 and determined that the non-indicted 4, 5, and 126 of the Gwangju District Court 209.1.19, 78 high-level9, 126; Gwangju High Court 24 May 24, 1979; 79No93, 780; 79No380 decided January 24, 1980; 79Do1509 decided August 31, 197; however, the court below found the defendant guilty as evidence of the non-indicted 4, 79No93 and 79Do1509 decided that the non-indicted 4 and the non-indicted 1, 79Do1509 decided that the non-indicted 4's remaining evidence cannot be admitted as evidence and that the non-indicted 2's judgment of conviction cannot be admitted as new evidence and thus, it cannot be admitted as evidence of the non-indicted 1, 1, 4, which is found guilty as evidence.

3. Dozin ex officio.

In a case where the judgment of the court below is reversed by the defendant's appeal and the case is remanded to the appellate court, and the judgment of the court below is pronounced guilty after remand, the court below shall not be sentenced to a more severe punishment than that of the reversed appellate judgment, in relation to the relation with the judgment of the court below prior to remand, on the ground that the principle prohibiting disadvantageous changes is applied (party members 64Do298 delivered on September 17, 1964; 79Do2105 delivered on March 25, 1980).

The first instance judgment against the Defendant was sentenced to the penalty of KRW 135,00,00 in imprisonment with prison labor and KRW 135,00,000 in the Bank of Korea and KRW 135,00 in the amount of confiscation and KRW 135,914,760 in the amount of KRW 18,00 in the Bank of Korea and KRW 135,00 in the amount of confiscation and KRW 135,914,760 in the amount of money. The prosecutor and the Defendant appealed the appeal by the lower court prior to the remanding of the case, and only the Defendant appealed the judgment of the first instance judgment and remanded the case to the appellate court. The lower court reversed the first instance judgment and sentenced the Defendant to the penalty of KRW 13,00,00 in the amount of imprisonment with prison labor and KRW 133,00 in the Bank of Korea and KRW 18,364,00 in the amount of confiscation and surcharge

4. The judgment of the court below against the defendant is reversed, and the case is remanded to the Gwangju High Court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating judges.

Justices Park Jong-soo (Presiding Justice)