[상해,폭력행위등처벌에관한법률위반,강간치상][집14(2)형,035]
In regard to juvenile offenders who have to be sentenced to an illegal term of punishment, the case where there is an error of law that sentenced a regular term of punishment.
In applying Article 54(1) of the former Juvenile Act (amended by Act No. 4057 of Dec. 31, 88), where the statutory penalty is chosen from a person who is either a life sentence or a limited term of punishment, the death penalty shall be rejected, and where the person has selected a limited term of punishment, the non-term sentence shall be imposed regardless of the mitigation if the long term is at least two years.
Articles 54 and 53 of the Juvenile Act
Defendant
Seoul High Court Decision 66No55 decided May 10, 1966
The appeal is dismissed.
40 days, out of the days pending trial after appeal, shall be included in the principal sentence.
In this case where a defendant was sentenced to imprisonment for less than 10 years, the grounds for appeal by the defendant and his defense counsel are examined. The argument that the facts established in the original judgment were denied, and that there was an error in mistake of facts in the original judgment, or that the sentencing of the original judgment was excessive shall not be a legitimate ground for appeal. (In applying Article 54(1) of the Juvenile Act, where the statutory penalty was chosen by death penalty, imprisonment for life or imprisonment for life, and where a defendant was selected by death penalty, imprisonment for life or imprisonment for a limited term of not less than two years, regardless of mitigation. (See Supreme Court Decision 1960 Form 509 delivered on September 30, 1960) In the original judgment, if the statutory penalty for the application of the above Act was committed in addition to imprisonment for a limited term of not less than two years, the defendant cannot be punished by imprisonment for life or imprisonment for a limited term of not less than five years, even if he was a juvenile, the judgment of the first instance court sentenced the defendant for a limited term of not less than 7 years is reversed and the sentence for a fixed term of five years.
However, even if the original judgment was reversed in this case only by the defendant, in light of the principle of prohibition of disadvantageous alteration, a long-term sentence of not less than five years on which the original judgment was pronounced shall not be sentenced in light of the principle of prohibition of disadvantageous alteration, and according to Article 301 of the Criminal Act, since the short-term punishment is five years, it cannot be sentenced to imprisonment for less than five years before mitigation, and there is no reason for mitigation in this case, so the short-term punishment shall be five years, and the defendant shall be sentenced to imprisonment for a maximum term and a short-term term, five years, respectively, and the defendant shall be sentenced to imprisonment for a fixed term and a short term, and the error in the original judgment above shall not affect the result of the original judgment. Thus, the original judgment shall not be reversed.
Therefore, the final appeal is dismissed, and 40 days out of the number of days pending trial after the final appeal shall be included in the principal sentence pursuant to Article 57 of the Criminal Act. It is so decided as per Disposition by the assent of all participating judges.
Justices of the Supreme Court Dog-gu (Presiding Judge) Dog-Jak and Mag-gu Mag-gu