Comprehensive Review of the Prohibition of Prejudice (Non-Reformation in Prejudice) and Sentencing Maintenance Principles

Let us assume a defendant who was sentenced to 8 months in prison with a 2-year suspension of execution (probation) files an appeal. If the appellate court maintains the prison sentence at 8 months but removes the suspension to impose an actual prison term, that verdict is illegal. This is because the 'prohibition of modification to disadvantage' (non-reformation in prejudice) principle, defined in Article 376 of the Criminal Procedure Act, acts as an obstacle. This principle serves not only as a baseline for numerical sentencing terms but also covers the entire disposition, including suspension, type of punishment, and confiscation or surcharge, thereby clearly drawing the upper limit of the appellate court's discretion in cases where the defendant appeals alone.

A Constitutional Safety Valve Protecting the Right to Appeal

Intent of the Principle and Structure of the Provision

Article 376 of the Criminal Procedure Act can be summarized in a single sentence.

"In a case appealed by the defendant, the judgment shall not be altered to his/her disadvantage." — Article 376, Criminal Procedure Act

The intent is simple. If appealing carries the risk of a heavier sentence, the defendant is forced to waive the opportunity to correct errors in the judgment themselves. This leads to the result of hollowing out the right to trial and the right to appeal guaranteed by the Constitution. To block this chilling effect, the legislator prohibited conclusions worse than the original trial in response to a defendant's appeal.

Expanding Scope of Protection via Precedents

Supreme Court precedents (e.g., 2018Do17849) do not limit this principle to a comparison of sentencing numbers. Canceling a suspension to change it to an actual prison term, or converting a fine into imprisonment, are all considered prohibited modifications to disadvantage. If the original trial sentenced a fine of 1 million won and the appellate court sentences 1 year in prison, it is not allowed because the type of punishment itself changes to physical confinement. Conversely, if the appellate court changes the original imprisonment to a fine, it is a beneficial change for the defendant and is unrestricted.

What Constitutes Disadvantage — Practical Judgment Criteria

Cases of Disadvantage Even When Numbers Remain the Same

In practice, substantial changes in status serve as the criterion. If the original trial sentenced a defendant to 8 months in prison with a 2-year suspension, and the appellate court sentences the same 8 months without the suspension, the sentencing term is maintained on the surface, but it is substantially disadvantageous. Naturally, if the term increases from 8 to 10 months, or if an acquittal is overturned to a guilty verdict, or if a previously un-ordered confiscation of 10 million won is added, all are prohibited. The stance of precedents is that even if the quantity of punishment is the same, if a new financial burden is added, it constitutes modification to disadvantage.

Common Misconceptions Regarding Sentencing Maintenance

The common understanding that sentencing is maintained due to the prohibition of modification to disadvantage has the direction reversed. The accurate legal principle is that even if the sentencing is maintained, unfavorable conditions cannot be added to the defendant. For example, in a case where the first instance sentenced 1 year in prison with a 2-year suspension, if the appellate court maintains the 1-year sentence but reduces the suspension period to 1 year, it violates the principle because the risk of the suspension becoming effective (revocation) increases. Adding a new community service order while maintaining the sentence is also not allowed as it increases the additional burden.

Who Appeals Determines the Outcome

Absolute Upper Limit in Defendant-Only Appeals

The premise for this principle to operate is that the defendant has filed an appeal and the prosecutor has not. In cases where only the defendant appeals, the conclusions the appellate court can reach are limited to maintaining the original sentencing or canceling it to reduce the sentence, grant a suspension, or other beneficial changes. The path to a sentence heavier than the original trial is not open for any reason.

Prosecutor Appeals and Cross-Appeals

In cases where only the prosecutor appeals, the situation is completely different. Since the defendant did not appeal, they do not receive the protection of this principle, and the appellate court may sentence a heavier punishment than the original trial. In cross-appeal cases where both the defendant and prosecutor appeal, precedents dictate that the principle does not apply. As long as the prosecutor's intent to appeal exists, the appellate court is recognized to have the authority to increase the sentence. Ultimately, the presence or absence of a prosecutor's appeal determines the possibility of a heavier sentence.

Limited Permission for Cross-Appeals (Limited Adhesion)

If the prosecutor files a cross-appeal (adhesion appeal) following the defendant's appeal, interpretations vary. Precedents view that a cross-appeal allows for an increase in sentencing over the original trial. However, legal theories argue that if the reasons for the cross-appeal are rejected, the sentence should be maintained, and there are claims that the application of the principle should be interpreted restrictively. In practice, the trend is dominant that if the reasons for the cross-appeal are not recognized, the original sentencing is maintained.

Procedural Implications and Practical Considerations

Pitfalls of Summary Orders and Formal Trials

A request for a formal trial following a summary order is evaluated differently in nature from an appeal. In the legal practice, interpretations have been raised that, unlike appeals, the punishment may become heavier during the process of transitioning to a formal trial. A defendant receiving a fine summary order must separately review the risk of sentence increase before requesting a formal trial. Conversely, if a case has entered the appeal procedure, there is no need to fear a sentence increase as long as the premise of a defendant-only appeal holds.

Three Things to Check Before Deciding on an Appeal

First, check whether the prosecutor has appealed. If the prosecutor appeals together, there is room for the sentence to become heavier even if the defendant appeals. Second, the scope of disadvantage should not be limited to sentencing numbers but must include suspension, confiscation, and all additional dispositions. Third, even if sentencing maintenance is expected in the appellate court, one must check whether circumstantial disadvantages, such as a shortened suspension period or new additional orders, are attached. Since the prohibition of modification to disadvantage is a device that substantially guarantees the right to appeal, accurately understanding its scope is the starting point of appeal strategy.