Supreme Court: "In cases where only the defendant appeals... sentencing heavier than the first trial is wrong"

Supreme Court, Seocho-dong, Seoul. Photo by Mun Ho-nam munonam@

[Asia Economy Reporter Kim Daehyun] The Supreme Court has ruled that a second trial verdict imposing a heavier sentence than the first trial in a case where only the defendant appealed and the prosecutor did not is incorrect.

On the 6th, the Supreme Court's 2nd Division (Presiding Justice Ahn Cheolsang) announced that it overturned the original verdict sentencing office worker A to a fine of 1.5 million won in the appeal trial for negligence causing injury and remanded the case to the Seoul Central District Court.

In 2018, A was prosecuted on charges of injuring B, a resident representative, by slamming the entrance door hard while leaving after a verbal dispute at the management office of an apartment in Gangnam-gu, Seoul. It was investigated that the dispute arose over A's use of the apartment rooftop as a private garden.

The first trial found A guilty of negligence causing injury and sentenced him to a fine of 1 million won. The court stated, "In a situation where there was a conflict of opinions, the defendant who first went to the door recognized that B was closely following and caused such injury."

The second trial increased A's fine to 1.5 million won. After A appealed the first trial verdict, the court accepted the prosecutor's opinion to amend the indictment by adding the injury charge.

The second trial court pointed out, "Although the injury required about 14 days of treatment, the defendant does not admit the crime nor show remorse," and "No effort was made to restore the damage, and no settlement was reached."

However, the Supreme Court ordered a retrial and reconsideration based on the principle of 'prohibition of disadvantageous changes.' Article 368 of the current Criminal Procedure Act stipulates that "If only the defendant appeals and the prosecution does not, a heavier sentence than the original trial cannot be imposed."

The court stated, "In the second trial where only A appealed, if the indictment was added, withdrawn, or changed, disadvantageous changes in sentencing are not allowed," and "The original court misunderstood the legal principle of prohibition of disadvantageous changes, which affected the judgment."