Accordingly, even if a judgment of conviction is rendered on a part of concurrent crimes in the text of the judgment, a claim for criminal compensation may be filed if the other part is not guilty. However, if the whole or part of the number of days of pre-trial detention is deemed to be included in the principal sentence as to the conviction, then the number of days of pre-trial detention included in the sentence is not subject to criminal compensation regardless of whether the sentence is the principal sentence or the suspended sentence is imposed, regardless of whether the sentence is imposed or not. The pre-trial detention is deemed to be included in the principal sentence as to the conviction, so long as the execution of the sentence

Meanwhile, even where a judgment of not guilty is not rendered in the text of the judgment but is rendered not guilty only on the grounds of the judgment, as to the part deemed necessary for the investigation and trial of the part of the judgment of not guilty among the pre-trial detention, the claim for compensation may be filed, as in the case where the judgment of not guilty is rendered. However, if the legal doctrine as seen earlier is applied and the whole or part of the number of days of pre-trial detention is confirmed

1. Article 2(1) of the Criminal Compensation and Restoration of Honor Act (hereinafter “Criminal Compensation Act”) provides that when a defendant in a case finalized by a verdict of not guilty has been detained pending trial, he/she may claim compensation for such detention against the State.

Accordingly, even if a judgment of conviction is rendered for a part of concurrent crimes in the text of the judgment, a claim for criminal compensation may be filed if the other part is not guilty. However, if the whole or part of the number of days of pre-trial detention is deemed to be included in the principal sentence as to the conviction, regardless of whether the sentence is either the principal sentence or the suspended sentence is imposed, the number of days of pre-trial detention included in the sentence is not subject to criminal compensation (see Supreme Court Order 9Mo129, Sept. 25, 2000). The pre-trial detention is deemed to be included in the principal sentence as to the conviction, so long as it becomes final and conclusive as such pre-trial detention is the same as the execution of the sentence, and

Meanwhile, even where a judgment of not guilty is not rendered in the text of the judgment but is rendered not guilty only on the grounds of the judgment, the part that was found necessary for the investigation and trial of the part that was judged not guilty among the detention pending trial may be claimed, as in the case where the judgment of not guilty is rendered (Supreme Court Order 2014Mo2521 Decided March 11, 2016). However, if the aforementioned legal doctrine is applied as it is and the whole or part of the number of days of detention pending trial is deemed to have been included in the sentence declared by the court, the number of days

2. The record reveals the following facts.

A. On May 19, 2015, the Defendant issued a detention warrant on May 21, 2015 due to the charge of violation of the Punishment of Violences, etc. Act (hereinafter “Assault Punishment Act”) (a collective, deadly weapons, etc.) (hereinafter “Rape Punishment Act”) (hereinafter “Rape Punishment Act”) (hereinafter “Rape Punishment Act”) (hereinafter “Rape Punishment Act”) and was prosecuted on June 5, 2015.

B. On November 11, 2015, the first instance court (Seoul District Court Daejeon District Court Branch Branch 2015No. 28) rendered a judgment of not guilty on the charges of violating the Sexual Violence Punishment Act (influence by rape, etc.), and rendered a judgment of not guilty on the grounds of the judgment. However, the lower court found the Defendant guilty of committing a violation of the Punishment of Violence Act (a crime of injury by group, deadly weapons, etc.) included in

C. The Defendant and the prosecutor filed an appeal against the judgment of the court of first instance. On March 25, 2016, the appellate court (Seoul High Court 2015No618) reversed the part of the judgment of the court of first instance on the grounds that “In relation to the reduction of the facts included in the facts charged in the violation of the Sexual Violence Punishment Act (Rape, etc.) and inflicted an injury on the victim by carrying dangerous articles, the Defendant and the prosecutor was subject to the deletion of Article 3(1) of the Punishment of Violence Act on January 6, 2016, and the special injury under Article 258-2 of the Criminal Act, which provides for such elements, was newly established on the grounds that the previous penal provisions were excessive, and this cannot be punished under the former Punishment of Violences Act, which is a new corporation at the time of the act, and only can be punished under Article 258-2(1) of the Criminal Act, which is a new corporation, pursuant to Article 1(2) of the Criminal Act, the sentence of imprisonment with prison labor for the Defendant, three years, and the suspended execution period and the judgment became final.

D. As above, the Defendant was detained for 273 days in the above criminal procedure from May 19, 2015 to February 16, 2016, which was subject to emergency arrest.

3. Examining the above facts in light of the legal principles as seen earlier, the number of days of detention pending trial by the defendant was 273 days in full included in imprisonment with prison labor for the crime of special injury under Article 57(1) of the Criminal Act, and thus, regardless of whether there is any part deemed necessary for the investigation and trial of the part of detention pending trial that judged not guilty, the number of days of detention under Article 4 subparag. 3 of the Criminal Compensation Act shall not be subject to criminal compensation without considering the discretion under Article 4 subparag.

Nevertheless, the lower court, without examining whether the whole or part of the number of days of detention pending trial by the Defendant was included in the principal sentence on conviction and whether it is possible to receive criminal compensation, determined that the Defendant may claim compensation for pre-trial detention pursuant to Article 2(1) of the Criminal Compensation Act solely on the ground that the Defendant was found not guilty on the grounds that the judgment became final and conclusive on the charge of violation of the Sexual Violence Punishment Act (Rape, etc.) against the Defendant. In so determining, the lower court erred by misapprehending the legal doctrine on the subject of criminal compensation as stipulated in Article 2(1) of the Criminal Compensation Act, thereby adversely affecting the conclusion of the judgment. The

4. 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 Lee Ki-taik (Presiding Justice)