Open Decision Ledger · Criminal & investigative procedure
Reformatio in peius and a newly imposed employment restriction order
Supreme Court, Dec. 13, 2018, 2018Do13562 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 강간미수
Official text on the National Law Information Center
Question
Where only the defendant appealed against a first-instance conviction for attempted rape, did an appellate court that vacated the judgment ex officio under Article 3 of the Supplementary Provisions to the 2018 amendment of the Act on the Protection of Children and Adolescents, and imposed the same sentence together with a three-year employment restriction order, breach the principle against reformatio in peius?
Holding
No. In applying the principle, the court must look at the order as a whole and in substance rather than item by item and formally. The appellate court kept the prison term of one year and the 80-hour sexual violence treatment programme of the first instance and added only a three-year employment restriction order, which gives the defendant no particular disadvantage in status compared with leaving the first-instance judgment in place, because the transitional provisions of the Supplementary Provisions, which set the period according to the principal sentence, three years for a term of imprisonment of three years or less, would have restricted his employment for three years and that is more favourable to him than the former rule, which imposed a ten-year restriction without exception.
Points at issue, verbatim
개정법 시행일 이후에 판결을 선고한 원심이 개정법 부칙 제3조와 제56조 제1항에 따라 판결 선고와 동시에 취업제한명령을 선고하여야 한다는 이유로 제1심판결을 직권으로 파기하고 유죄를 인정하면서 제1심과 동일한 형과 함께 3년간의 취업제한명령을 선고한 사안에서, 불이익변경금지원칙에 반하지 않는다고 한 사례
Unofficial English translation
in a case where, the court below, which rendered its judgment after the enforcement date of the amended Act, reversed the judgment of the court of first instance ex officio on the ground that an order restricting employment must be pronounced at the same time as the pronouncement of judgment pursuant to Article 3 of the Additional Provisions and Article 56 paragraph (1) of the amended Act, and, while finding the defendant guilty, imposed the same sentence as that of the court of first instance together with an order restricting employment for three years, the Court held that this does not run counter to the principle prohibiting unfavorable change
Disposition
Dismissed Stated in the decision
상고를 기각한다.
Unofficial English translation
The appeal is dismissed.
Form of the test
Existing test applied Read from the decision
불이익변경금지원칙에 반하지 않는다고 한 사례
Unofficial English translation
a case in which the Court held that this does not run counter to the principle prohibiting unfavorable change
Factors
- 불이익변경금지원칙을 적용할 때에는 주문을 개별적·형식적으로 고찰할 것이 아니라 전체적·실질적으로 고찰하여 판단하여야 하는지 여부(적극)
- 제1심이 개정법 시행일 이전에 유죄를 인정하여 징역 1년과 성폭력 치료프로그램 이수명령(80시간)을 선고하였고
- 이에 대하여 피고인만 사실오인과 양형부당을 이유로 항소하였는데
- 제1심과 동일한 형과 함께 3년간의 취업제한명령을 선고한 사안에서
Unofficial English translation
• Whether, in applying the principle prohibiting unfavorable change, the disposition must be examined and determined in its entirety and in substance, rather than individually and formally (affirmative)
• the court of first instance found the defendant guilty before the enforcement date of the amended Act and sentenced the defendant to imprisonment for one year and an order to complete a sexual violence treatment program (80 hours), and
• only the defendant appealed against this on the grounds of misapprehension of fact and unfair sentencing, and
• in a case where the same sentence as that of the court of first instance was imposed together with an order restricting employment for three years
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2013. 12. 12. 선고 2012도7198 판결(공2014상, 212)
Unofficial English translation
Supreme Court Decision 2012Do7198 decided December 12, 2013 (Gong 2014 Sang, 212)
Decisions referred to
[1] 대법원 2013. 12. 12. 선고 2012도7198 판결(공2014상, 212)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Would the appellate court's ex officio vacatur and new order still satisfy the principle if the principal sentence had been increased at the same time as the employment restriction was added?
A later decision on Article 56 of the Act on the Protection of Children and Adolescents or on the scope of the transitional provisions would call for this entry to be read again. The Constitutional Court decisions of 2016 that prompted the 2018 amendment, and any further amendment to the employment restriction regime, would have the same effect.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 7 of the 8 axes; the readings differed on axis 8 (open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “Would the appellate court's ex officio vacatur and new order still satisfy the principle if the principal sentence had been increased at the same time as the employment restriction was added?” vs Independent “Would an employment restriction exceeding the period applicable had the first-instance judgment become final violate the prohibition against disadvantageous modification?”
The primary reading asks about a case where the principal sentence was also increased, while the independent reading asks about a restriction longer than the first-instance period.
개정법 시행일 이후에 판결을 선고한 원심이 개정법 부칙 제3조와 제56조 제1항에 따라 판결 선고와 동시에 취업제한명령을 선고하여야 한다는 이유로 제1심판결을 직권으로 파기하고 유죄를 인정하면서 제1심과 동일한 형과 함께 3년간의 취업제한명령을 선고한 사안에서, 불이익변경금지원칙에 반하지 않는다고 한 사례Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Gwangju High Court, in its judgment of 9 August 2018 (2018No157), held that under Article 3 of the Supplementary Provisions and Article 56(1) of the amended Act an employment restriction order had to be pronounced at the same time as the judgment. It therefore vacated the first-instance judgment ex officio, found the attempted rape proved, and imposed on the defendant the same sentence as the first instance, a prison term of one year and an 80-hour sexual violence treatment programme, together with a three-year employment restriction order.
Supreme Court standard: The Supreme Court found no error. Reading the reasons against the relevant law and the lawfully admitted evidence, it held that the conviction and the employment restriction were proper and that no fact had been wrongly found. It held further that the transitional provisions of the Supplementary Provisions would have restricted the defendant's employment for three years even if the first-instance judgment had become final without an appeal, and that the special provisions are more favourable than the former rule, so that the new order caused him no particular disadvantage in status; the appeal was dismissed by the unanimous opinion of the Justices.
Distinguishing conditions
- A case in which applying the former provision would be more favourable to the defendant than the transitional provisions of the Supplementary Provisions, since the decision relies on the special provisions being the more favourable regime.
- A defendant who committed the offence after the amended Act took effect, where Article 3 of the Supplementary Provisions, which extends the amended provision to offences committed before the effective date, is not the reason for the new order.
- A case in which the prosecution, and not the defendant alone, appealed or was the only appellant, since the decision turned on the defendant being the sole appellant.
Record verification notes
Set the date of the offence against the effective date of the amended Act (Act No. 15352 of 16 January 2018, in force six months after promulgation) and the date of the first-instance judgment, 30 March 2018, and confirm that the first-instance judgment had not become final. Then work out the restriction period the transitional provisions of the Supplementary Provisions, Article 4(1)(iii) and Article 5, would give for the principal sentence, and compare it with the ten-year restriction under the former Article 56(1) and with whatever order the appellate court imposed.
From the official text
Points at issue
[1] 불이익변경금지원칙을 적용할 때에는 주문을 개별적·형식적으로 고찰할 것이 아니라 전체적·실질적으로 고찰하여 판단하여야 하는지 여부(적극) [2] 2018. 1. 16. 법률 제15352호로 개정된 아동·청소년의 성보호에 관한 법률의 시행 전에 성범죄를 범한 피고인에 대하여, 제1심이 개정법 시행일 이전에 유죄를 인정하여 징역 1년과 성폭력 치료프로그램 이수명령(80시간)을 선고하였고, 이에 대하여 피고인만 사실오인과 양형부당을 이유로 항소하였는데, 개정법 시행일 이후에 판결을 선고한 원심이 개정법 부칙 제3조와 제56조 제1항에 따라 판결 선고와 동시에 취업제한명령을 선고하여야 한다는 이유로 제1심판결을 직권으로 파기하고 유죄를 인정하면서 제1심과 동일한 형과 함께 3년간의 취업제한명령을 선고한 사안에서, 불이익변경금지원칙에 반하지 않는다고 한 사례
Unofficial English translation
[1] Whether, in applying the principle prohibiting unfavorable change, the disposition must be examined and determined in its entirety and in substance, rather than individually and formally (affirmative) [2] In a case where, with respect to a defendant who committed a sex offense before the enforcement date of the Act on the Protection of Children and Juveniles against Sexual Abuse as amended by Act No. 15352 on January 16, 2018, the court of first instance found the defendant guilty before the enforcement date of the amended Act and sentenced the defendant to imprisonment for one year and an order to complete a sexual violence treatment program (80 hours), and only the defendant appealed on the grounds of misapprehension of fact and unfair sentencing, the court below, which rendered its judgment after the enforcement date of the amended Act, reversed the judgment of the court of first instance ex officio on the ground that an order restricting employment must be pronounced at the same time as the pronouncement of judgment pursuant to Article 3 of the Additional Provisions and Article 56 paragraph (1) of the amended Act, and, while finding the defendant guilty, imposed the same sentence as that of the court of first instance together with an order restricting employment for three years, in which case the Court held that this does not run counter to the principle prohibiting unfavorable change
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
상고를 기각한다.
Unofficial English translation
The appeal is dismissed.
Provisions referred to
[1] 형사소송법 제368조, 제399조 [2] 형법 제297조, 제300조, 구 아동·청소년의 성보호에 관한 법률(2018. 1. 16. 법률 제15352호로 개정되기 전의 것) 제56조 제1항(현행 제56조 제1항, 제2항 참조), 아동·청소년의 성보호에 관한 법률 제56조 제1항, 제2항, 부칙(2018. 1. 16.) 제1조, 제3조, 제4조 제1항 제3호, 제5조, 형사소송법 제368조, 제399조
Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
Back to the ledger