형사 항소심의 양형재량 한계 - 서울남부지방법원 2018. 6. 29. 선고 2018노367 판결 -

Abstract

Substantially and finally, the Criminal Court of Appeals has the discretion to sentence in Korea. If the court handed down an unreasonable setence, the prosecutor could not decide to appeal to the Supreme Court for an unreasonable setence. In this case, can the prosecutor appeal to the Supreme Court for misunderstanding of the legal principles? According to The Supreme Court ruling 2015Do3260, which was decided on July 23, 2015, the majority opinion says that the prosecutor cannot appeal to the highest court for that it is actually an unreasonable sentencing. On the other hand, the dissenting opinion allows an appeal to the highest court for that it is not an unreasonable sentencing but misunderstanding of the legal principles(etc. the Practice of appellate criminal court not to be respectful of trial court, the deterioration of the public trust to the justice, the Limitation of sentencing discretion). Considering that the current Criminal Procedure Law succeeded to the Amendment of the Code of Criminal Procedure(1963) regarding the grounds of appeal, and the deterioration of the public trust to the Justice, that the appellate criminal court has internal restrictions on sentencing discretion, the criminal court of appeals was misconduct because it did not respect the 1st trial court. Finally, appeals to the Supreme Court for reasons of misunderstanding of the principles of the law serve as a substantial control.