Open Decision Ledger · Criminal & investigative procedure
Reversal for excessive sentence with the same sentence reimposed
Supreme Court, Nov. 6, 2025, 2025Do9717 (judgment)
Case name: 재물손괴·폭행·상해·스토킹범죄의처벌등에관한법률위반·성폭력범죄의처벌등에관한특례법위반(통신매체이용음란)·도로교통법위반(음주운전)
Official text on the National Law Information Center
Question
Where an appellate court finds the first-instance sentence excessive and accepts the appeal by reversing the first-instance judgment while imposing the same sentence, are the reasons and the order of that judgment in unlawful conflict, and when the first-instance judgment carries two orders for crimes before and after a final conviction, must the appellate court examine each order together with the appeal ground against it and, where it reverses the whole first-instance judgment as excessive, impose on each order a sentence lighter than that order?
Holding
Yes. The Supreme Court held that finding the sentence excessive, reversing on that ground and then reimposing the identical sentence makes the reasons contradict the order, and that this unlawfulness affects the outcome. Where one defendant's crimes before and after a final conviction were dealt with in two separate orders, the appellate court must examine each order together with the appeal ground against it one by one, and when it reverses the whole first-instance judgment as too heavy it must impose on each order a sentence lighter than that order.
Summary of the holding, verbatim
항소심이 제1심의 양형이 과중하다고 인정하여 피고인의 항소이유를 받아들여 제1심판결을 파기하면서 제1심의 형과 같은 형을 그대로 선고하면 판결의 이유와 주문이 저촉모순되는 위법이 있고 이러한 위법은 판결 결과에 영향이 있는 것인바,
Unofficial English translation
Where the appellate court, finding the sentencing of the court of first instance excessive, accepted the defendant's grounds of appeal and reversed the judgment of the court of first instance while imposing the same sentence as that imposed by the court of first instance, there is a defect in the judgment arising from a contradiction between its reasoning and its order, and such a defect affects the outcome of the judgment, and
Disposition
Partly reversed and remanded Stated in the decision
원심판결 중 판시 재물손괴죄, 도로교통법 위반(음주운전)죄에 대한 부분을 파기하고, 이 부분 사건을 서울서부지방법원에 환송한다. 나머지 상고를 기각한다.
Unofficial English translation
The judgment of the court below is reversed insofar as it concerned the crime of destruction of property and the crime of violation of the Road Traffic Act (drunk driving), and the case as to this portion is remanded to the Seoul Western District Court. The remainder of the final appeal is dismissed.
Form of the test
Elements stated Stated in the decision
동일 피고인의 확정판결 전후의 범죄에 대하여 주문 2개를 선고한 제1심의 항소심은 제1심판결의 하나의 주문 관련 부분과 그에 대한 항소이유, 또 하나의 주문 관련 부분과 그에 대한 항소이유를 살펴 개별적으로 항소이유가 있는지 여부를 판단하여야 하고
Unofficial English translation
In an appeal from the judgment of the court of first instance that rendered two dispositions in respect of crimes committed before and after a final and conclusive judgment of the same defendant, the appellate court must examine the portion of the judgment of the court of first instance relating to one disposition and the grounds of appeal thereagainst, and the portion relating to the other disposition and the grounds of appeal thereagainst, and determine individually whether there are grounds for appeal, and
Factors
- 제1심의 양형이 과중하다고 인정하여 피고인의 항소이유를 받아들여 제1심판결을 파기하면서 제1심의 형과 같은 형을 그대로 선고하면
- 동일 피고인의 확정판결 전후의 범죄에 대하여 주문 2개를 선고한 제1심의 항소심은
- 제1심판결의 하나의 주문 관련 부분과 그에 대한 항소이유, 또 하나의 주문 관련 부분과 그에 대한 항소이유를 살펴 개별적으로 항소이유가 있는지 여부를 판단하여야 하고
- 제1심의 양형이 과중하다고 인정하여 제1심판결 전부를 파기한 경우에는 제1심판결의 각 주문보다 개별적으로 가벼운 형을 각 선고하여야 한다
Unofficial English translation
• where the appellate court, finding the sentencing of the court of first instance excessive, accepted the defendant's grounds of appeal and reversed the judgment of the court of first instance while imposing the same sentence as that imposed by the court of first instance,
• in an appeal from the court of first instance that rendered two dispositions in respect of crimes committed before and after a final and conclusive judgment of the same defendant, the appellate court
• must examine the portion of the judgment of the court of first instance relating to one disposition and the grounds of appeal thereagainst, and the portion relating to the other disposition and the grounds of appeal thereagainst, and determine individually whether there are grounds for appeal, and
• where the entirety of the judgment of the court of first instance has been reversed on the ground that the sentencing of the court of first instance was excessive, a sentence individually lighter than each disposition of the judgment of the court of first instance must be imposed for each
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2009. 4. 9. 선고 2008도11718 판결
Unofficial English translation
Supreme Court Decision 2008Do11718 decided April 9, 2009
Decisions referred to
대법원 1999. 7. 23. 선고 99도1682 판결(공1999하, 1826), 대법원 2009. 4. 9. 선고 2008도11718 판결(공2009상, 688), 대법원 2009. 7. 9. 선고 2009도584 판결
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
When an appellate court must impose a sentence lighter than each first-instance order, what degree of reduction keeps that sentence within the proper range of punishment?
The remand judgment from the Seoul Western District Court will show the extent of the reduction the appellate court considers right and should be read with this entry. Any amendment to Article 383(i) of the Criminal Procedure Act, or a later decision stating how far below each first-instance order the sentence must fall, would require a fresh reading.
Cross-family AI independent reading & axis check
8 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-24
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on all 8 axes.
Raw 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 Seoul Western District Court, sitting on appeal, in its judgment of 29 May 2025 (2024No563), held that the sentences the first instance had imposed were somewhat too heavy in the light of the circumstances it listed, including the settlement between the victim of the criminal damage and the defendant, and the concurrence of the other offences with the already finalised obstruction of justice under the latter part of Article 37 of the Criminal Act and Article 39(1) of the Criminal Act. It reversed the whole first-instance judgment, yet imposed on the criminal damage and on the drink-driving the same fine of KRW 20 million as the first instance, and on the remaining offences a term of one year's imprisonment suspended for two years in place of the first-instance one year and six months suspended for two years.
Supreme Court standard: The Supreme Court found no error in the appellate court's refusal to disturb the first-instance finding of guilt on assault and injury, since the reasons did not misstate the law on the credibility of the victim's statement or breach the rules on free evaluation of evidence. On its own initiative, however, it held that the parts on criminal damage and drink-driving made the reasons contradict the order, because a sentence found too heavy was followed by the identical fine of KRW 20 million, and that this was not cured by the lighter sentence on the other offences. It reversed those parts and remanded them to the Seoul Western District Court, dismissing the rest of the appeals.
Distinguishing conditions
- An appellate court that keeps the first-instance judgment intact rather than reversing it, so that no conflict between reasons and order can arise.
- A first-instance judgment carrying a single order, where the duty to examine each order and each appeal ground separately has no work to do.
- An appellate court that, after reversing, imposes on each of the first-instance orders a sentence lighter than that order, which is what the Court held must be done.
Record verification notes
Before relying on this decision, mark out how many orders the first-instance judgment contained and which offences each order covered, then read each order together with the appeal ground filed against it. Next, compare the appellate sentence for each order with the sentence in the corresponding first-instance order, since the illegality arises where a sentence found excessive is followed by reimposition of the identical sentence. Finally, check whether the appeal concerned only sentencing or also the finding of guilt, as the Court treated the two differently in the same judgment.
From the official text
Points at issue
항소심에서 제1심의 양형이 과중하다고 인정하여 제1심판결을 파기하면서 제1심의 형과 같은 형을 그대로 선고한 경우, 판결의 이유와 주문이 저촉모순되는 위법이 있는지 여부(적극) / 확정판결 전후의 범죄에 대하여 주문 2개를 선고한 제1심판결에 대한 항소심의 심리·판단 방법 및 이때 제1심의 양형이 과중하다고 인정하여 제1심판결 전부를 파기한 경우, 항소심은 제1심판결의 각 주문보다 개별적으로 가벼운 형을 각 선고하여야 하는지 여부(적극)
Unofficial English translation
Whether there is a defect in the judgment arising from a contradiction between its reasoning and its order where the appellate court, finding the sentencing of the court of first instance excessive, reversed the judgment of the court of first instance while imposing the same sentence as that imposed by the court of first instance (affirmative) / In an appeal from the judgment of the court of first instance that rendered two dispositions in respect of crimes committed before and after a final and conclusive judgment of the same defendant, the method of examination and determination to be employed by the appellate court, and whether, where the appellate court reversed the entirety of the judgment of the court of first instance on the ground that the sentencing of the court of first instance was excessive, the appellate court must impose a sentence individually lighter than each disposition of the judgment of the court of first instance (affirmative)
Summary of the holding
항소심이 제1심의 양형이 과중하다고 인정하여 피고인의 항소이유를 받아들여 제1심판결을 파기하면서 제1심의 형과 같은 형을 그대로 선고하면 판결의 이유와 주문이 저촉모순되는 위법이 있고 이러한 위법은 판결 결과에 영향이 있는 것인바, 동일 피고인의 확정판결 전후의 범죄에 대하여 주문 2개를 선고한 제1심의 항소심은 제1심판결의 하나의 주문 관련 부분과 그에 대한 항소이유, 또 하나의 주문 관련 부분과 그에 대한 항소이유를 살펴 개별적으로 항소이유가 있는지 여부를 판단하여야 하고, 제1심의 양형이 과중하다고 인정하여 제1심판결 전부를 파기한 경우에는 제1심판결의 각 주문보다 개별적으로 가벼운 형을 각 선고하여야 한다.
Order
원심판결 중 판시 재물손괴죄, 도로교통법 위반(음주운전)죄에 대한 부분을 파기하고, 이 부분 사건을 서울서부지방법원에 환송한다. 나머지 상고를 기각한다.
Unofficial English translation
The judgment of the court below is reversed insofar as it concerned the crime of destruction of property and the crime of violation of the Road Traffic Act (drunk driving), and the case as to this portion is remanded to the Seoul Western District Court. The remainder of the final appeal is dismissed.
Provisions referred to
형사소송법 제361조의5, 제364조, 제383조 제1호
Read 2026-10-24 · Cross-read 2026-10-24. 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.
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