[2] The case holding that the appellate court's dismissal of the defendant's appeal despite a separate sentence of imprisonment with prison labor and a fine in the judgment of the court of first instance was unlawful where the appellate court failed to disclose where the period of detention in the court of first instance should be included in the period of detention in the workhouse

In this case where imprisonment with prison labor for not more than 10 years and fines are sentenced, the assertion that the sentence of the court below is too unreasonable and that the period of suspension of execution will be exceeded shall not be a legitimate ground for appeal.

2. It shall be deemed ex officio.

In a case where the appellate court dismissed the defendant's appeal and included the unconvicted detention days before the judgment in the sentence of the court of first instance, if there are two or more sentence of the court of first instance, it is necessary to clarify which sentence should be included in the sentence (Supreme Court Decision 95Do1084 delivered on July 11, 1995, etc.).

According to the records, although it is obvious that the punishment of the defendant in the judgment of the court of first instance is separately sentenced to imprisonment with prison labor and fine, the court below dismissed the defendant's appeal only by rejecting the defendant's appeal, "79 days of detention before the court of first instance shall be included in the punishment of the court below." Thus, since the court below did not disclose where the period of detention before the court of first instance should be included in the period of detention in the workhouse with prison labor and fine, the judgment of the court below is erroneous in failing to satisfy the reasons for the judgment, and it is obvious that this affected

However, in this case, since it is deemed sufficient to judge a member based on the records of trial and the evidence investigated by the court of first instance and the court of first instance, it is decided directly by a member pursuant to Article 396 (1) of the Criminal Procedure Act.

3. The gist of the grounds for appeal by the defendant is that the punishment of the judgment of the court of first instance is too unreasonable.

However, the defendant committed each of the crimes in this case after being sentenced to 1 year and 6 months of imprisonment with prison labor for the crime of violation of the Punishment of Violences, etc. Act (a group, deadly weapon, etc.) in the Busan District Court's Dong Branch on April 14, 2004, and 3 years of suspended sentence, and even before the grace period expires, the defendant committed the crimes in this case in addition to the fact that the defendant had a number of times of drinking driving or unlicensed driving skills and that the amount of blood alcohol concentration caused by drinking alcohol in this case is considerably high, and the defendant's age, character, character, intelligence and environment, motive, means and consequence of the crime, and the circumstances after the crime, etc. are considered as the condition for sentencing in this case. The determination of the sentence imposed by the court of first instance on the defendant is acceptable, and it is not too unreasonable

4. Therefore, the defendant's appeal is dismissed on the grounds that it is without merit, and the 79 days of detention days after the appeal shall be included in the punishment for the crime of Article 2 of the judgment of the court of first instance as stated in the judgment of the court of first instance, applying Article 57 of the Criminal Act. However, since there is an obvious error as stated in the pertinent provision of the Criminal Procedure Act concerning criminal facts in the application of the law of the court of first instance, it is decided to revise ex officio pursuant to Article

Justices Park Ill-sook (Presiding Justice)