형의 불이익변경 여부의 판단기준

Abstract

Criminal Procedure Law declares the Principle of Prohibition of "reformatio in peius" with regulation prohibiting sentences heavier than the sentence from original judgment in cases appealed by the defender or for the defender. In relation to this, regarding the decision standard of the Principle of Prohibition of "reformatio in peius", judicial precedence has not clearly declared whether they are taking overall and practical consideration method and the detailed significance of it ; therefore not only that the judge's volition has taken more weight, a sentence's decision is being completed by consideration in formality without any actual consideration in actual precedence which regards actual consideration as an unnecessary procedure. Especially individual and formal consideration method and the overall, actual consideration are shown as a conflicting concept. However, while the individual consideration and overall consideration are subjected to comparative methods, the comparison between the formal consideration and the actual consideration should take the facts which both are the judgmental standard paralleling each other into account. Therefore, the overall and actual consideration method and the individual and formal consideration method should not be understood as confrontational methods but as mutual complementing methods. Considering these facts, I suggest the phased consideration method as standard measure of decision for whether the sentence qualifies for the Principle of Prohibition of "reformatio in peius" or not. This opinion takes position of the following method: in the first phase, the weight of the sentence is decided by the overall and formal consideration method and if the severe punishment is resulted it is determined as violation of the Principle of Prohibition of "reformatio in peius" If it is not considered as severe punishment, the weight of sentence is decided by the overall and actual consideration method in the second phase and the severe punishement is resulted it is determined as violation of the Principle of Prohibition of "reformatio in peius". By prioritizing the formal decisions like this personal opinion, we minimize the number of subjects requiring the actual trials which not only avoids vexatious actual consideration of every case in need of comparison of weight of the sentences; it eliminates the involvement of the judge's personal opinions and guarantees the objectivity. However, if the case is difficult to be compared by the formal consideration, repletion by the actual consideration method is inevitable.