Why Did the Prosecutors Give Up Even Though the 'Busan Dolryeochagi' Perpetrator Appealed?

Supreme Court Must Change Precedent to Open Prosecutor's Appeal Path
Request to Change Precedent in 'Jeong-in Abuse Case' Also Rejected

In the appeal trial of the so-called 'Busan Dolleochagi' case, where a man indiscriminately assaulted a woman in her 20s on her way home in Busan last year in an attempt to rape her, the perpetrator who was sentenced to 20 years in prison recently appealed to the Supreme Court.

However, the prosecution did not file an appeal. Despite the sentence being significantly reduced from the 35 years imprisonment originally sought by the prosecution in the appeal trial, the reason the prosecution gave up on appealing is that, legally, the prosecution cannot appeal on the grounds of inappropriate sentencing. Under current law, only defendants sentenced to 10 years or more can appeal the original judgment on the grounds of inappropriate sentencing.

The victim of the Dolleochagi case, Ms. A, recently posted a petition on the Cheongwon24 website requesting that victims be allowed to appeal directly. Through the petition, she said, "The perpetrator can appeal on the grounds of inappropriate sentencing, so why can't the prosecution appeal on those grounds?" and "Aren't all citizens equal before the law? Can't we even talk about inappropriate sentencing for the changed charge (attempted rape and murder)?"

Ms. A lamented, "How long do victims have to prove things themselves?" and "Why do I have to walk such a rough path without shortcuts? Why is it so difficult to receive a fair trial?"

On the afternoon of the 12th, after the appeal trial of the 'Busan Dolryeochagi Incident' held at the Busan High Court in Yeonje-gu, Busan, the victim is shedding tears during an interview.
[Image source=Yonhap News]

The perpetrator, Mr. B, was initially sentenced to 12 years in prison in the first trial last October on charges of attempted murder only. However, after Mr. B’s DNA was detected on the jeans worn by the victim, the second trial changed the indictment to attempted rape and murder.

Although the indictment was changed, the victim cannot appeal through the prosecution. This is based on a Supreme Court precedent from February 1966. According to Article 383, Clause 4 of the Criminal Procedure Act, in cases where the sentence is death, life imprisonment, or imprisonment or detention for 10 years or more, an appeal on the grounds of inappropriate sentencing can be made against the original judgment. However, this clause is intended to protect the interests of defendants who receive heavy sentences, so only defendants can appeal on the grounds of inappropriate sentencing.

In other words, the perpetrator Mr. B can appeal the 20-year sentence seeking a reduction, but the victim Ms. A cannot request the prosecution to appeal on the grounds of inappropriate sentencing to impose a heavier sentence. This is why she is pleading for a way for victims to appeal.

In response, the prosecution has repeatedly requested the Supreme Court to change its precedent to allow appeals on the grounds of inappropriate sentencing. However, the Supreme Court has continuously cited past precedents until recently, maintaining the old ruling.

On the afternoon of the 12th, defendant A in the roundhouse kick case is getting into a transport vehicle after being sentenced to 20 years in prison at the appellate court hearing at the Busan Court Complex in Yeonje-gu, Busan. [Image source=Yonhap News]

In the 2020 child abuse case of 16-month-old Jeong In, which outraged many citizens, when the sentence for the adoptive mother Ms. C was reduced in the appeal trial, the prosecution requested a change in precedent and appealed. However, the Supreme Court dismissed it, and Ms. C’s 35-year sentence from the appeal trial was finalized.

At that time, the Supreme Court ruled, "The grounds for appeal on inappropriate sentencing as stipulated in the latter part of Article 383, Clause 4 of the Criminal Procedure Act are for the benefit of defendants sentenced to imprisonment of 10 years or more," and "The prosecution cannot file an appeal on the grounds of inappropriate sentencing that is unfavorable to the defendant, such as the sentence being too light."

It added, "This ruling is significant in that it reaffirms the Supreme Court’s previous position that the grounds for appeal on inappropriate sentencing under the Criminal Procedure Act can only be asserted for the benefit of the defendant, and it explains the reasons in relatively detailed terms."

Seung Jae-hyun, senior research fellow at the Korea Institute of Criminology and Justice Policy, argued that the Supreme Court precedent needs to be changed. Researcher Seung said, "In cases like the Dolleochagi incident, where the prosecution sought 35 years but the sentence was about half that, opening the door for the prosecution to appeal on the grounds of inappropriate sentencing is part of realizing criminal justice that reflects the voices of victims."

This content was produced with the assistance of AI translation services.