[논문]不利益變更 與否의 客觀的·具體的 判斷基準

• 영문명: [Article]A Study on the Objective-Concrete Method as Scheme Deciding Disadvantageous Alteration
• 발행기관: 한국형사법학회
• 저자명: 이존걸(Lee John-Girl)
• 간행물 정보: 『형사법연구』형사법연구 제23권, 176~197쪽, 전체 22쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2005.06.01

영문 초록

The rule of prohibition on disadvantageous alteration is to prevent readiness to suffer on disadvantageous as it prohibits proceedings of appeal to sentence more serious punishment than the punishment sentenced by judgement of the original instance for advantage of the criminal defendant in case of appeal case or formal trial. It is also called as the rule of no imposition on heavier punishment. The rule of prohibition on disadvantageous alteration in Korean criminal procedure code prescribes not to sentence more serious punishment than the punishment sentenced by judgment of the original instance in case of defendant appeal case and appeal case for the criminal defendant. Thus, it is not applicable to case of appeals by only public prosecutor or both public prosecutor and the criminal defendant. It is applicable to the cases of appeal by the criminal defendant, the cases of appeal for the criminal defendant, and the cases requesting formal trial. However, it is disputable whether it is applicable to the appeal case for the criminal defendant by a public prosecutor who is a representative of public interest. Thus, it is necessary to be stipulated. In addition, the rule of prohibition on disadvantageous alteration is also applicable to remand after quashing, remand after transfer, free discretion of quashing, amendment of information, and a case of apple on a ruling. The rule of prohibition on disadvantageous alteration needs to be continuously sustained since it practically guarantees the human right of the criminal defendant as it guarantees the right to appeals of the criminal defendant. However, its procedure needs to be separated into two steps since the current procedure can not grasp the points of disadvantageous alteration. First, it needs to determine the relative gravity of punishment and secondly, it needs to determine whether there is a disadvantage, because the relative gravity of punishment is different from what is the actual disadvantage for the criminal defendant. The whole-actual judging method is appropriate to determine the relative gravity of punishment and the objective-concrete method is appropriate to determine whether there is disadvantage.

목차

Ⅰ. 머리말

Ⅱ. 不利益變更禁止의 適用範圍

Ⅲ. 不利益變更 與否의 客觀的·具體的 判斷基準

Ⅳ. 結論

[Abstract]