In a case where the lower judgment is reversed by the Defendant’s final appeal and the case is remanded to the appellate court, whether the principle prohibiting disadvantageous alteration applies to the relationship with the lower judgment prior to remand (affirmative)

Article 368 of the Criminal Procedure Act

Supreme Court Decision 79Do2105 Decided March 25, 1980, Supreme Court Decision 2005Do8607 Decided May 26, 2006

Defendant

Defendant

Attorney Park Young-young et al.

Supreme Court Decision 2013Do12064 Decided January 23, 2014

Incheon District Court Decision 2014No266 decided May 14, 2014

The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.

The grounds of appeal are examined.

1. The part rejected by the court of final appeal on the ground that the argument in the grounds of final appeal is groundless, becomes final and conclusive at the same time as the ruling is rendered, and the court that has been remanded cannot render a judgment contrary thereto. Thus, the defendant cannot make a claim in this part as the grounds of final appeal (see Supreme Court Decision 2011Do8478, Oct. 13, 201).

Examining the reasoning and records of the lower judgment in accordance with the aforementioned legal doctrine, the lower court was justifiable to have found the Defendant guilty of each of the charges of this case against the victim Nonindicted 1 and the victim Nonindicted 2, on the grounds stated in its reasoning. In so doing, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by

2. The lower court found the Defendant guilty of fraud against the victim Nonindicted 3 and the victim Nonindicted 4 among the facts charged in the instant case based on the evidence in its holding.

According to the records, the court below's decision that found the defendant guilty of this part of the facts charged is just, and the above error of the court below did not affect the conclusion of the judgment, and it did not err in the violation of the rules of evidence or incomplete deliberation, unless there is any evidence that the prosecutor again requested evidence and adopted it after the prosecutor withdrawn the application for evidence with respect to the fraud against the victim non-indicted 3 and the victim non-indicted 4 in the facts charged of this case. However, according to the remaining evidence, including the court's statement in the court below duly adopted and investigated by the court of first instance, the above complaint and the statement in each investigation agency cannot be used as evidence for conviction. However, the court below's decision that found the defendant guilty of this part of the facts charged is justified, and there is no violation of the rules of evidence or incomplete deliberation

In addition, in light of the evidence duly adopted and examined by the court below and the first instance court, the court below was just in finding the defendant guilty of violating the Illegal Check Control Act with respect to the check number table, which is a check number, among the facts charged in this case, on the grounds as stated in its reasoning. There is no violation of the principle of free evaluation of evidence against the law of logic and experience.

3. In a case where the judgment of the court of final appeal is reversed by the defendant's appeal, and the case is remanded to the appellate court, the appellate court may not render a sentence more severe than the reversed appellate court's judgment, in relation to the relation with the judgment of the court below prior to remand (see Supreme Court Decision 2005Do8607, May 26, 2006). This legal principle also applies to a case where the appellate court finds the defendant guilty of a new crime on the ground that there is a legitimate modification of indictment at the court below after remand (see Supreme Court Decision 79Do2105, March 25, 1980).

According to the records, the court below, before remanding the case, sentenced 10 months of imprisonment and 2 years of fine as to the crimes of No. 1, 2, 4, 5, and 6 of the judgment, and only the defendant appealed. The court below reversed the conviction portion of the judgment of the court below before remanding the case to the court below and remanded this part of the case to the court below. After remanding the case, the court below convicted all of the crimes of No. 5 of the judgment of the court below as to the crimes of No. 3 of the judgment, and sentenced 2 years of imprisonment and 2 million won of fine as to the crimes of No. 1, 2, 4, 5, and 6 of the judgment.

According to the above legal principles, the decision of the court below, which sentenced a heavier punishment than the court below prior to remand, shall be deemed to violate the principle of prohibition of disadvantageous change.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)