[edit] Supreme Court Decision 2001Do192 delivered on March 9, 2001 [Homicide by a Robber (admitted crimes: felony murder), Bodily Injury resulting from Robbery, Violation of the Act on the Punishment of Sexual Crimes and Protection of Victims thereof]

【Main Issues】

[1] When the defendant denies a statement about a criminal fact or makes a false statement during a criminal proceeding, whether such attitude or action of the defendant could be considered as a condition for the sentencing of aggravated punishment (affirmative with qualification)

[2] Due to the defendant's appeal, the trial on appeal reversed the judgment of the court below and the case has been remanded to the appellate court. However, after the remand, the statutory punishment changed to a lessor offense in the written prosecution at the court below. Accordingly, when the appellate trial recognizes a new criminal fact as guilty and adjudicate the same sentence as the court below before the remand, whether it violates the principle of prohibition of disadvantageous alteration (negative)

【Summary of Decision】

[1] One of the conditions provided for sentencing from the situations after the crime in the item 4 of Article 51 of the Criminal Act includes the defendant's attitude or behavior during the criminal proceedings. Since every citizen has the right not to be forced to make an unfavorable statement (Paragraph 2 of Article 12 of the Constitution), the defendant, with his right of defense, is allowed to refuse to make a statement regarding criminal facts. In this case, to consider the simple denial of criminal facts as a condition for the sentencing for aggravated punishment by regarding the failure to reflect on or regret the crime as defects in personality deserving criticism is eventually forcing a confession from the defendant and thereby, is not permitted. However, if such attitude or behavior extends outside the scope of the guaranteed right of defense such that the defendant actively conceals the discovery of truth despite the objective and obvious evidence or attempts to mislead the court, it can be considered as the condition for sentencing aggravated punishment.

[2] When the trial on appeal reversed the judgment of the court below and the case was remanded to the appellate court due to the defendant's appeal, adjudication of the same sentence as the sentence adjudicated before remand at the court below cannot be considered as a violation of the principle of prohibition of disadvantageous alteration even if the appellate trial recognized a new guilty criminal fact due to the legal modification of the indictment after remand at the court below. There is no violation of such principle even if the indictment was reduced to a crime with more lenient statutory punishment.

【Reference Provisions】 [1] item 4 of Article 51 of the Criminal Act, Paragraph 2 of Article 12 of the Constitution / [2] Article2 298, 368 and 399 of the Criminal Procedure Act

Article 51 of the Criminal Act (General Principles for Determination of Punishment) In determining punishment, the following shall be taken into consideration:

1.~3. <omitted>

4. Circumstances after the commission of the crime.

Article 12 of the Constitution

(1) <omitted>

(2) No citizens shall be tortured or be compelled to testify against himself in criminal cases.

(3)~(7) <omitted>

Article 298 of the Criminal Procedure Act (Changes in Indictment) (1) The public prosecutor may, with permission of the competent court, add, delete or change charges or applicable provisions of Acts stated in the indictment. In this case, the identity of the charges shall not be disturbed.

(2) In case the court deems it reasonable in view of trial process they shall request for the addition or change of charges or applicable provisions of Acts.

(3) When there are additions, withdrawal or changes of charges or applicable provisions of Acts, the court shall promptly notify the causes thereof to the defendant or his defense counsel.

(4) In case the court is afraid that the addition, withdrawal or change of charges or applicable provisions of Acts in the indictment under the preceding three paragraphs may increase disadvantages of the defendant, the court may, by a ruling, ex officio or upon request of the defendant, defense counsel, grant a recess of the public trial for a period necessary for the defendant to prepare his defense.

Article 368 of the Criminal Procedure Act (Prohibition of Judgment Disadvantageous to Defendant) In a case where appeal has been lodged by, or for the benefit of the defendant, no penalty more severe than that imposed by the original judgment shall be pronounced.

Article 399 of the Criminal Procedure Act (Applicable Provisions) The provisions of the preceding Chapter shall apply mutatis mutandis to the trial of appeal, except as otherwise provided in this Chapter.

【Reference Cases】 [2] Supreme Court Decision 64Do298 delivered on September 17, 1964 (Jip12-2, Hyung 17), Supreme Court Decision 79Do2105 delivered on March 25, 1980 (Gong1980, 12754), Supreme Court Decision 86Do402 delivered on September 23, 1986 (Gong1986, 2991)

【Defendants】Defendant 1 and 3 others

【Appellant】 Defendants

【Defense Counsel】 Attorney Kim Hyun

【Previous Decision of Remand】 Supreme Court Decision 2000Do3652 delivered on October 13, 2000

【Court of First Instance】 Cheonan Branch of Daejeon District Court judgment 99Gohap142 delivered on April 7, 2000

【Court of Second Instance】 Daejeon High Court Judgment 2000No610 delivered on December 22, 2000

【Disposition】 The appeals shall be dismissed. Each day of confinement after the remand, 41 days in total, shall be added to each of the original sentence.

【Reasoning】 The grounds for appeal of the defendants and their state-appointed defense attorney are examined as follows.

1. On the argument that there was an infringement on the fundamental rights of defendant 1

One of the provided conditions for sentencing from the situations after the crime in the item 4 of Article 51 of the Criminal Act includes the defendant's attitude or behavior during the criminal proceedings. Since every citizen has the right not to be forced to make an unfavorable statement (Paragraph 2 of Article 12 of the Constitution), the defendant, with his right of defense, is allowed to refuse to make a statement regarding criminal facts. In this case, to consider the simple denial of criminal facts as a condition for the sentencing for aggravated punishment by regarding the failure to reflect on or regret the crime as defects in personality deserving criticism is eventually forcing a confession from the defendant and thereby, is not permitted. However, if such attitude or behavior extends outside the scope of the guaranteed right of defense such that the defendant actively conceals the discovery of truth despite the objective and obvious evidence or attempts to mislead the court, it can be considered for the condition for sentencing for aggravated punishment.

Upon investigation of the record and legal principles, considering the consistent attitude to evade and failure to reflect on his liability for the crime as one of the reasons for sentencing is justifiable. In addition, there is no violation of guaranteed constitutional and criminal right not to be coerced to make unfavorable statement against the defendant himself, as argued in the ground for appeal.

2. On the argument about unlawful sentencing

When the trial on appeal reversed the judgment of the court below and the case was remanded to the appellate court due to the defendant's appeal, adjudication of the same sentence as the sentence adjudicated before remand at the court below cannot be considered as a violation of the principle of prohibition of disadvantageous alteration even if the appellate trial recognized a new guilty criminal fact due to the legal modification of the indictment after remand to the court below. There is no violation of such principle even if the statutory punishment prescribed for the criminal act under the modified indictment was less than before the modification.

Accordingly, after the facts charged to the defendants in the indictment modified from homicide to robbery to felony murder, the recognition of modified criminal facts as guilty and the adjudication of the court below of the same sentence as one before the remand can not be a violation, as stated in the ground for appeal.

Furthermore, considering all the sentencing factors revealed in the case record such as the intention, means and result of the crime and the situation after the crime, it is not the case that there is a prominent reason to recognize that the sentence of the court below, 15 year imprisonment to each of the defendant 2, 3, 4 is unduly excessive. With regard to defendant 1, the argument that sentencing of less than 10 year imprisonment is unjust because it is too excessive cannot be a legal ground for appeal.

Therefore, the appeals are all dismissed and 41 days of each day of confinement after the remand shall be added to each of the original sentence based on the unanimous opinion of the participating Justices as reflected in the Disposition.

Justices Cho Moo-jeh (Presiding Justice)

Lee Yong-woo

Kang Shin-wook (Justice in charge)

Lee Kang-kook

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