[2] Purport of the provision of Article 72 of the Criminal Procedure Act and in a case where a court issued a detention warrant without going through the procedure under the same provision in issuing a detention warrant to the defendant, but the defendant already appointed a defense counsel and submitted a vindication and evidence in the trial proceedings and was sentenced to a judgment under his defense, whether the decision to issue the detention warrant is unlawful (negative with qualification)

[3] The case holding that even if the court did not go through the procedure under Article 72 of the Criminal Procedure Act before issuing a warrant of detention to the defendant, the decision to issue the warrant of detention cannot be deemed unlawful on the ground that the procedural right under the same provision is substantially guaranteed

[4] In a case where Article 88 of the Criminal Procedure Act is violated, whether the validity of detention warrant is invalidated (negative)

[2] Article 72 of the Criminal Procedure Act provides that "the summary of the crime, the reason for detention, and the opportunity to defend shall not be binding unless the defendant is given an opportunity to defend himself/herself." This provision provides the procedure of a prior hearing by a judge in the detention of the defendant, and it is not the procedure to be taken by the executing agency but the procedure to be taken by the judge of the court of the lawsuit, etc. in the execution of the detention warrant. Thus, in issuing the detention warrant, if the court issued the detention warrant without going through the procedure under the above provision in advance in issuing the detention warrant to the defendant, the decision to issue the warrant shall be deemed unlawful. However, since the above provision aims to guarantee the procedural right of the defendant, if the procedural right as prescribed in the above provision is already guaranteed, such as where the defense counsel is already selected and presented, and a judgment under his/her defense is issued, the decision to issue the warrant shall not be deemed unlawful merely because it was issued without going through all or part of the corresponding procedure.

[3] The case holding that even if the court did not go through the procedure stipulated in Article 72 of the Criminal Procedure Act before issuing a detention warrant to the defendant, the decision to issue the detention warrant shall not be deemed unlawful on the ground that the procedural right under the same provision is substantially guaranteed.

[4] Article 88 of the Criminal Procedure Act provides that "When the defendant is detained, the summary of the facts charged and the fact that he/she can appoint a defense counsel shall be notified immediately." This does not affect the validity of the detention warrant by violating the provisions concerning the ex post facto hearing procedure.

According to the records, although the first detention warrant sign of this case on the re-appellant stated that it is one of the name of the crime, the facts charged in the detention warrant of this case does not contain any indication of the accusation, so the effect of the first detention warrant of this case does not extend to the facts charged in the accusation in principle, and there is no special circumstance to deem that it is valid to the facts charged in the accusation of the second detention warrant of this case.

Therefore, the court below's issuance of the second detention warrant of this case to the re-appellant as the charge of the warrant of detention is just, and there is no violation of the relevant provisions such as the Constitution, the Criminal Procedure Act, the Regulation on Criminal Procedure, etc. as alleged in the grounds for reappeal.

2. As long as the detention period of the second detention warrant against the re-appellant is lawful due to facts constituting an offense different from the facts stated in the previous detention warrant at the time of the expiration of the detention period of the defendant, the detention period of the second detention warrant of this case against the re-appellant is separate from the detention period of the first detention warrant of this case. Thus, the grounds for reappeal that the detention period of the second detention warrant of this case should be included in the detention period of the first detention warrant of this case cannot be accepted

3. Article 72 of the Criminal Procedure Act provides that "the summary of the crime, the reason for detention, and the opportunity to defend shall not be detained unless the defendant is given an opportunity to defend himself/herself." This provision provides the procedure of prior hearing by a judge in the detention of the defendant. It is not the procedure to be taken by the executing agency but the procedure to be taken by the judge of the court of the lawsuit, etc. in the issuance of the detention warrant. Thus, in issuing the detention warrant to the defendant, if the court issues the detention warrant without going through the procedure under the above provision, the decision to issue the warrant shall be deemed unlawful.

However, since the above provision is a provision to guarantee the procedural rights of the defendant, if it can be seen that the procedural rights prescribed in the above provision have been substantially guaranteed, such as the case where a defense counsel was already appointed to submit a vindication and evidence in the trial proceedings and a judgment was rendered under his defense, the decision to issue a warrant of detention does not constitute unlawful, even if a detention warrant was issued without going through all or part of the corresponding procedure (see Supreme Court Order 85Mo12, Jul. 23, 1985).

However, according to the records, on July 7, 1993, the defendant was sentenced to 7 years of imprisonment with prison labor for the case such as 93 Gohap174, etc. at the Seoul Criminal District Court, and was under execution of the sentence. Regarding this case, the defendant was sentenced to 7 years of imprisonment with prison labor for the first instance court and 2 years of imprisonment with prison labor for the case, and filed an appeal against this case. The court below issued the first detention warrant of this case when the period of detention under the first detention warrant of this case expired, and after the period of detention under the second detention warrant of this case expired, the court below issued the second detention warrant of this case on July 7, 200 without undergoing the procedure under Article 72 of the Criminal Procedure Act for the second detention warrant of this case, and had the officer of the court on July 19, 200 prior to the execution of the above detention warrant of this case notify the re-appellant of detention after undergoing the hearing procedure under the above provisions.

As above, the Re-Appellant had already been convicted of the facts constituting the crime of the second detention warrant of this case in the court of first instance and had been well aware of the summary of the crime, etc., and had sufficient opportunity to defend the defendant as the defendant, and the second detention warrant of this case is re-detained with regard to other facts constituting the crime of this case which has already been jointly tried by the Re-Appellant as a separate crime. In light of the fact that the court below did not follow the procedure under the above provisions before issuing the second detention warrant of this case, even if the court below did not follow the procedure under Article 72 of the Criminal Procedure Act, it shall be deemed that the procedural right has been substantially guaranteed against the Re-Appellant. Thus, even if the court below issued the second detention warrant of this case without undergoing the procedure under Article 72 of the Criminal Procedure Act, the decision to issue the second detention warrant of this case shall not be deemed unlawful, and therefore,

4. Article 88 of the Criminal Procedure Act provides that "if the defendant is detained, the summary of the facts charged and the counsel shall be notified immediately." This does not affect the validity of the detention warrant by violating the provisions concerning the ex post facto hearing procedures. Thus, the argument in the grounds of reappeal that the second detention warrant of this case lost its validity by failing to comply with the above provisions cannot be accepted.

5. The purport of the Re-Appellant's assertion is that there is an error of law in the first detention warrant and its extension decision of the case where the effect of the Re-Appellant has already been lost. However, this cannot be viewed as a legitimate ground for reappeal as to the decision to issue the second detention warrant of this case

6. Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Son Ji-yol (Presiding Justice)