Where an appellate court reverses the judgment of the first instance which sentenced an imprisonment for life and sentence a limited imprisonment, it shall render a judgment that the number of detention days prior to the pronouncement of the judgment of the first instance should be included in the principal

Where an appellate court reverses the judgment of the first instance which sentenced an imprisonment for life and sentence a limited imprisonment, it shall render a judgment that the whole or part of the detention days prior to the judgment of the first instance be included in the original sentence

Article 57 of the Criminal Act, Article 4 of the Military Criminal Act, Article 366 of the Military Court Act

Defendant

Seoul High Court Decision 71 type Port63 delivered on May 4, 1971, 200

We reverse the original judgment.

This case shall be remanded to the High Military Court of Justice at the Army.

As to the Defendant’s defense counsel’s grounds of appeal

When considering ex officio, according to the judgment of the court of first instance, the defendant was sentenced to imprisonment for life by recognizing the facts constituting the principal offense. The court below reversed the above judgment of the court of first instance and ruled that "76 days of detention days prior to the sentencing shall be included in the above principal sentence" while sentenced to imprisonment for a limited term of 15 years.

However, as seen above, if the court below reversed the judgment of the court of first instance which sentenced the imprisonment for life and sentenced the imprisonment for a limited term, the whole or part of the detention days prior to the pronouncement of the judgment of the court of first instance should be included in the principal sentence (Article 366 of the Military Court Act, Article 4 of the Military Criminal Act, and Article 57 of the Criminal Act). However, as seen above, the court below reversed the judgment of the court of first instance and sentenced the imprisonment for a limited term as seen above, and did not sentence the whole or part of the detention days prior to the pronouncement of the judgment of the court of first instance to the sentence of imprisonment for a limited term, and there is no violation of law that could affect the judgment. (The court of first instance reversed the judgment of the court of first instance and sentenced the sentence to imprisonment for a limited term and included 76 days in the detention days prior to the pronouncement of the judgment of the court of first instance, but since the court below reversed the judgment of first instance pursuant to Article 515 of the Military Court Act, the whole detention days prior to the judgment after the judgment should be included in the original sentence.

Therefore, it is so decided as per Disposition with the assent of all participating judges.

The judges of the Supreme Court (Presiding Judge)