[절도피고사건][하집1986(1),413]
The case holding that the number of days pending trial has been excessively included;
If, without reasonable reason, only 45 days out of 78 days of detention days prior to the sentence of the judgment below was included in the sentence, the number of days of detention of the defendant would be less than that of the sentence and a significant portion of the sentence should be included in the sentence.
Article 57 of the Criminal Act
Defendant
Defendant
Seoul Criminal Court of the first instance (85 High Court Decision 5411)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not more than ten months.
75 days from the detention days prior to the pronouncement of the judgment below shall be included in the above sentence.
The summary of the grounds for appeal by the defendant is that the court below included too little number of days of detention before sentencing in sentencing the sentence against the defendant, and it is unfair that the amount of the sentence is too unreasonable.
On August 13, 1985, after the defendant was prosecuted for the crime of this case after being detained and detained on August 30, 1985, the records clearly revealed that 45 days of detention days prior to the pronouncement of the judgment below had been included in the sentence of this case. The court below erred in violation of Article 57 of the Criminal Act that, even if the records of this case are examined, only 45 days of detention days prior to the pronouncement of the judgment below were included in the sentence of the judgment of the court below, it is obvious that the number of detention days prior to the pronouncement of the judgment of the court below was 80 days prior to the pronouncement of the judgment of the court below.
Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the appeal by the defendant is with merit, and this case is judged as follows. Since the facts recognized by the plaintiff and the evidence relations related thereto are both the time of the original trial, they are cited in accordance with Article 369 of the same Act.
Article 329 (Selection of Imprisonment or Imprisonment with Labor)
Article 57
It is so decided as per Disposition for the above reasons.
Judges Lee Dong-dae (Presiding Judge)