부정기형과 불이익변경금지원칙에 대한 일고찰 - 대법원 2020. 10. 22. 선고 2020도4140 전원합의체 판결에 대한 비판적 검토를 중심으로 -

The court of first instance sentenced 7 years of indeterminate sentence of 15 years in long-term and 7 years in short term pleading guilty to 18-year-old accused for the charges. So, the accused appealed for the reason of unreasonable sentence but prosecutor did not. It became the situation that the principle of prohibition on disadvantageous alteration should be complied. Original court also pleaded guilty for the charge and as the accused reached to 19 years during the trial and did not correspond to the juvenile anymore, (that is, the indeterminate sentence could not be maintained anymore), the court of second instance repealed the verdict of the first trial by authority and sentenced 7 years of imprisonment, which is short-term sentence of the first trial, which followed the traditional stance of Supreme Court. However, the prosecutor appealed to Supreme Court and Supreme Court changed the view. Supreme Court viewed that they should not verdict long-term or short-term sentence but should judge if it would violate the principle of prohibition on disadvantageous alteration or not. Is it really relevant? The principle of prohibition on disadvantageous alteration was formed by the liberalistic influence after French Revolution and selected as basic principle of the continental criminal procedure act such as Germany, Japan, etc. It has a significance in securing the right of appeal so that the accused can appeal sufficiently getting away from the state of psychological anxiety of alteration risk to severe sentence and viewing that it is derived from the right to trial provided by Constitution is relevant. And it is reasonable that the judgment of disadvantage follows the general and substantial contemplation theory. It stated that the court should not contemplate the request individual and formally but should judge if it is substantially disadvantageous to the accused taking the kinds of punishment (Article 41) and the severity of punishments (Article 50) in the Criminal Act as reference and further, considering the request as a whole such as cumulative sentence, additional punishment, period of imprisonment in workhouse, suspension of sentence, etc. In the meantime, when judging the disadvantage between the indeterminate sentience and the determinate sentence, if it is viewed as long-term punishment of indeterminate sentence or -like the altered view of Supreme Court - intermediate punishment, it is imposing the substantial disadvantage to the accused and it is illegal. In the event that the prison service record is excellent and it is recognized that the correction purpose is achieved, the termination of sentence is possible and the parole can be authorized if one/third of short-term is elapsed. That is, as a juvenile criminal sentenced with indeterminate sentence, expecting that the termination of sentence is possible as a short-term basis is the most advantageous. After all, if the long-term punishment or intermediate punishment is viewed as reference, the accused cannot but exercise the right of appeal in exchange of interest. the possibility of the termination of sentence after short-term punishment, and then, the principle of prohibition on the disadvantageous alteration cannot guarantee the right of appeal anymore. Therefore, the alteration of view to a intermediate punishment cannot be considered as a harmony with the principle of responsibility -like the decision of relevant trial. It is the violation of the principle of prohibition on disadvantageous alteration.