[재판의집행에관한이의·교통사고처리특례법위반등] 재항고[각공2009하,1732]
The case holding that, in accordance with the purport of Article 57 of the Criminal Act, which is a provision on the basis of partial inclusion of the number of days of pre-trial detention, a decision of unconstitutionality as to Article 57 of the Criminal Act, it is improper to direct the prosecutor's execution that the defendant
In accordance with the purport of the decision of unconstitutionality as to Article 57 of the Criminal Act, which is a provision on the basis of partial inclusion of the number of days of pre-trial detention, the case holding that a prosecutor’s order of execution that is not included in the calculation of the period of pre-trial detention is unreasonable
Article 482(2) of the Criminal Procedure Act
Supreme Court en banc Order 2007Mo522 Decided August 10, 2007 (Gong2007Ha, 1490) en banc Order 2007HunBa25 Decided June 25, 2009 (HunGong153, 1244)
Defendant
Defense Counsel of the defendant and one other, Counsel for the defendant Kim Yong-gal et al.
Prosecutor of the District Prosecutors' Office
With respect to the foregoing case, the prosecutor of the Cheongju District Prosecutors' Office revokes the command of execution of punishment stating that “the period of pre-trial detention from the time when an appeal is filed to the time when an appeal is withdrawn shall not be included in the principal sentence” and shall include all days of pre-trial detention from the time when
1. Facts of recognition;
According to the records, the defendant was indicted for a violation of the Act on Special Cases concerning the Settlement of Traffic Accidents (Act No. 2009Kadan643) and appealed on May 28, 2009 and withdrawn appeal on July 21, 2009. However, in the Cheongju District Prosecutors' Office, the defendant ordered the execution of punishment that the number of days of pre-trial detention shall not be included in the original sentence, from the period of appeal to the date of withdrawal of appeal.
2. Determination:
On the other hand, the Republic of Korea has established the "inception of bankruptcy" which is included in the court's trial in accordance with Article 57 of the Criminal Act and Article 24 of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings, and the "legal inclusion" which is naturally included in the court's trial in accordance with Article 482 of the Criminal Procedure Act. However, in the case where the defendant or the defendant filed an appeal and the appeal is withdrawn, the inclusion of the whole or part of the number of days detained pending trial in the period after the appeal was filed and the appeal was withdrawn, the above period is not stipulated in each of the above provisions. Thus, it cannot be said that the above period is illegal or unjust.
However, on June 25, 2009, the Constitutional Court rendered a decision of unconstitutionality as to Article 57 of the Criminal Act, which is a provision that allows only part of the days of pre-trial detention to be included in the period of punishment, on the ground that "the period of pre-trial detention does not substantially differ from the execution of imprisonment in light of the perspective of the suspect or the defendant whose physical freedom is infringed, and thus, should be included in the period of punishment in accordance with the protection of human rights and the principle of fairness (see, e.g., Constitutional Court Decision 2007Hun-Ba25, Jun. 25, 2009; Supreme Court Decision 2007Hun-Ba25, etc.; Supreme Court Decision 2007Hun-Ba25, etc.; Supreme Court Decision 2007Hun-Ba25, etc.; Supreme Court Decision 2007Hun-Ba25
3. Conclusion
Therefore, since the applicant's application of this case is well-grounded, it is so decided as per Disposition by applying Articles 491 (1) and 489 of the Criminal Procedure Act.
Judges Na Jin-jin