Criminal, civil and administrative procedural laws all stipulate that trials are conducted at two levels, including first instance and appeal. So, during the appeal trial, if the defendant does not appeal and the defendant is not appealed or protested, can the appellate panel amend the first instance judgment to reduce the sentence for that defendant? Or will it only consider defendants who have appealed or protested?
Pursuant to Clause 1, Article 355 of the 2015 Criminal Procedure Code, the authority of the Appellate Trial Council for the first-instance judgment is stipulated as follows: Not accepting the appeal or protest and upholding the first-instance judgment; Amending the first-instance judgment; Annulling the first-instance judgment and transferring the case file for re-investigation or re-trial; Annulling the first-instance judgment and suspending the case; Suspending the appeal trial.
Clause 1 and Clause 2, Article 358 of the 2015 Criminal Procedure Code stipulate the annulment of the first instance judgment for re-investigation or re-trial.
Specifically, the Appellate Court shall annul the first instance judgment for reinvestigation in the following cases: There is reason to believe that the first instance court overlooked a crime, a criminal, or initiated a prosecution or investigation for a more serious crime than the crime declared in the first instance judgment; The investigation at the first instance court was incomplete and the appellate court could not supplement it; There was a serious violation of procedural law during the investigation and prosecution stage.
The appellate panel shall annul the first-instance judgment for retrial at the first instance level with a new panel of judges in the following cases: The first-instance trial panel does not have the correct composition as prescribed in the 2015 Criminal Procedure Code; There is a serious violation of procedural law during the first-instance trial stage; The person is declared not guilty by the first-instance court but there is reason to believe that he/she has committed a crime; Exemption from criminal liability, exemption from punishment or application of judicial measures against the defendant without basis; The first-instance judgment has serious errors in the application of the law but does not fall under the case where the appellate panel amends the judgment as prescribed in Article 357 of the 2015 Criminal Procedure Code.
Pursuant to Clause 1 and Clause 3, Article 357 of the 2015 Criminal Procedure Code, the provisions on amending the first instance judgment are as follows:
When there is a basis to determine that the judgment at first instance is not consistent with the nature, extent, and consequences of the crime, the defendant's personal circumstances, or there are new circumstances, the Appellate Trial Panel has the right to amend the judgment at first instance as follows: Exempt the defendant from criminal liability or from punishment; not apply additional punishment; not apply judicial measures; Apply articles and clauses of the Penal Code on lesser crimes; Reduce the sentence for the defendant; Reduce the amount of compensation for damages and amend the decision on handling evidence; Change to another lighter punishment; Maintain or reduce the prison sentence and grant a suspended sentence.
If there is a basis, the Appellate Court may amend the first instance judgment according to the above provisions for defendants who do not appeal or are not appealed or protested.
Based on the above provisions, if there is a basis, the Appellate Court may amend the first instance judgment for defendants who do not appeal or are not appealed or protested.
Specifically: Exempting the defendant from criminal liability or punishment; not applying additional punishment; not applying judicial measures; Applying articles and clauses of the Penal Code on lesser crimes; Reducing the sentence for the defendant; Reducing the amount of compensation for damages and amending the decision on handling evidence; Changing to another lighter punishment; Maintaining or reducing the prison sentence and granting a suspended sentence.
Thus, the Appellate Court can still amend the first instance judgment to reduce the sentence for defendants who do not appeal or are not appealed or protested when there is a basis.
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