형종상향금지원칙과 불이익변경금지원칙 - 대법원 2020. 3. 26. 선고 2020도355 판결 -

Abstract

Prohibition of judgment disadvantageous to criminal defendants was a new system introduced in the Criminal Procedure Act in 1995 to practically guarantee the defendant’s right to a formal trial. However, it was pointed out that after the introduction of the rule, the number of formal trial cases increased rapidly and cases of abuse of the right to a formal trial occurred. Therefore, after a long period of debate in the National Assembly, an amendment was passed to replace Prohibition of judgment disadvantageous to criminal defendants with Prohibition of judgment on kinds of punishment disadvantageous to criminal defendants and to state the reason for the sentence when the sentence is increased. The target judgment is a case that clearly shows the change in judgment after the introduction of Prohibition of judgment on kinds of punishment disadvantageous to criminal defendants. This is because the subject judgment clarifies that when an appeal of a general case in which a prison sentence was imposed at the first instance and an appeal of a formal request for trial in which a fine was imposed at the first instance are consolidated and disposed of at the appellate court, the appellate court cannot impose a prison sentence on the formal request for trial portion. While it is undeniable that the targeted judgment is a natural conclusion based on the statutory text of the Prohibition of judgment on kinds of punishment disadvantageous to criminal defendants, it is questionable whether this conclusion is in line with the original legislative intent to mitigate the penalty enhancement fund rule. In this regard, it is necessary to conduct an empirical and specific study on whether the rule, which was introduced to prevent the abuse of the right to a formal trial while ensuring the defendant’s right to a trial, is effective in preventing the abuse of the right to a formal trial in actual criminal proceedings. It is also necessary to examine whether Prohibition of judgment on kinds of punishment disadvantageous to criminal defendants has been ineffective in actual criminal proceedings, and whether it discourages economically disadvantaged defendants from exercising their right to a fair trial, or unduly restricts the sentencing authority of judges.