[2] Whether the prosecutor's disposition of ordering the execution of detention days which are not included in the principal sentence is unlawful until the appeal is withdrawn after the period of appeal (negative)

[2] In light of the nature of pre-trial detention, there should be statutory provisions regarding the inclusion of pre-trial detention in the term of punishment, but there is no particular provision regarding the inclusion of pre-trial detention in the case where the defendant or a person other than the defendant filed an appeal but withdraws an appeal. In other words, Article 482(2) of the Criminal Procedure Act provides that the number of days of pre-trial detention shall be included in the term of punishment, but the period of detention shall not be included in the term of punishment as a matter of law from the time of the withdrawal of appeal after the period of appeal. Meanwhile, if the defendant or the person other than the defendant files an appeal but withdraws the appeal, it is only a matter that should be resolved in a legislative policy. Accordingly, it cannot be said that it is unlawful or unjust to include the period of pre-trial detention in the term of punishment of the prosecutor who was not included in the term of punishment after the period of appeal was withdrawn.

Notwithstanding the presumption of innocence, in order to prevent escape or destruction of evidence and smoothly proceed with an investigation, trial, or execution of sentence, detention without detention is a compulsory disposition before the final and conclusive judgment to deprive the suspect or the defendant of his freedom by detention in a certain facility for a certain period, and is not an execution of sentence. Therefore, given that such period should not be naturally included in the term of punishment.

In light of the above nature of pre-trial detention, there should be statutory provisions regarding the inclusion of pre-trial detention in the term of punishment, but there is no particular provision regarding the inclusion of pre-trial detention in the case where the defendant or a person other than the defendant filed an appeal but withdraws the appeal. In other words, Article 482(2) of the Criminal Procedure Act provides that the number of days of pre-trial detention shall be included in the term of punishment, but the period of detention shall be included in the term of punishment as a matter of law from the time of the withdrawal of appeal after the period of appeal. Meanwhile, if the defendant or the person other than the defendant files an appeal but withdraws the appeal, it may be stipulated that the whole or part of the days of pre-trial detention may be claimed to the court until the appeal is withdrawn, but this is merely a matter that needs to be resolved in

Therefore, it cannot be said that the prosecutor's disposition of ordering the execution of this case is unlawful or unjust, which does not include the period from the time when the defendant withdraws an appeal after the period of appeal.

Nevertheless, the court below maintained the judgment of the court of first instance that revoked the prosecutor's order of execution of this case on the premise of different legal principles. Thus, the court below erred by misapprehending the legal principles as to inclusion of days of pre-trial detention in the court below's order

Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)