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(영문) 대법원 1999. 9. 7. 자 99초355,99도3454 결정
[구속취소][공1999.11.1.(93),2263]
Main Issues

[1] In a case where a detention warrant has already been invalidated, whether the revocation of detention under Article 93 of the Criminal Procedure Act is possible (negative)

[2] In a case where only the prosecutor appealed on the part of the judgment of the appellate court which acquitted or convicted the part of the substantive concurrent crimes, whether the part of the conviction was affirmed (affirmative), and whether the revocation of detention under Article 93 of the Criminal Procedure Act after the part of the conviction which was sentenced to imprisonment has become final and conclusive (negative)

Summary of Decision

[1] The revocation of detention under Article 93 of the Criminal Procedure Act is a cancellation of detention by a court, ex officio or upon request of the defendant, etc., at the time when there is no ground for detention against the defendant detained under a detention warrant or upon expiration of the period, and the detention warrant becomes invalidated by such decision. Thus, under the premise that the validity of the detention warrant remains effective. In other cases where the detention warrant has already been invalidated for other reasons, the revocation of detention

[2] In a case where the appellate court's judgment that found the defendant guilty of part of the concurrent crimes under the former part of Article 37 of the Criminal Code was appealed against the part of the acquittal, the part of the conviction that the defendant and the prosecutor did not appeal to the court of final appeal is not transferred to the court of final appeal, and the detention warrant becomes effective when the judgment of the sentence of imprisonment becomes final and conclusive against the defendant under detention. Thus, when the judgment of the sentence of imprisonment becomes final and conclusive, the detention warrant is invalidated at the time when the judgment of the conviction of the above case becomes final and conclusive (so, the execution procedure of the sentence for the convicted part which became final and conclusive to continue detention of the defendant). Thus, the court

[Reference Provisions]

[1] Article 93 of the Criminal Procedure Act / [2] Article 37 of the Criminal Act, Article 93 of the Criminal Procedure Act

Reference Cases

[2] Supreme Court en banc Decision 91Do1402 delivered on January 21, 1992 (Gong1992, 951) Supreme Court Decision 94Do3250 delivered on June 13, 1995 (Gong1995Ha, 2428), Supreme Court Decision 96Do2606 delivered on June 13, 1997 (Gong197Ha, 2093)

Defendant

Defendant

Claimant

Defendant

Defense Counsel

Attorney Or-il

Text

The motion for revocation of detention in this case is dismissed.

Reasons

1. The revocation of detention under Article 93 of the Criminal Procedure Act is a cancellation of detention by a court, ex officio or upon request of the defendant, etc., when there is no ground for detention against a defendant detained under a detention warrant, or when it ceases to exist, and a detention warrant becomes invalidated by such decision. Thus, the premise that the validity of the detention warrant remains effective. In other cases where the detention warrant has already been invalidated for other reasons, the revocation of detention under the above provision

In addition, in a case where only the prosecutor appealed on the part of the concurrent crimes under the former part of Article 37 of the Criminal Act, the part of the conviction for which the defendant and the prosecutor did not appeal to the court of final appeal is not transferred to the court of final appeal (see Supreme Court Decision 91Do1402, Jan. 21, 1992). On the other hand, in a case where the judgment on the sentence of imprisonment for the defendant under detention becomes final and conclusive, the detention warrant becomes void. Thus, in a case where the sentence of imprisonment for the above case becomes final and conclusive, the detention warrant becomes void (the execution procedure for the final and conclusive conviction to continue detention of the defendant), and as long as the detention warrant has already become void, the court cannot revoke the decision on the detention under Article 93 of the Criminal Procedure Act.

2. According to the records, the claimant was indicted as concurrent crimes of altering private documents, uttering of altered private documents, and attempted fraud, and the first instance court issued a detention warrant ex officio on April 28, 199 as to the crime of altering private documents and uttering of altered private documents, and as to the crime of attempted fraud, the claimant was arrested by issuing a detention warrant ex officio. As to the guilty portion, the prosecutor appealed the acquittal portion on July 14, 1999, and the appellate court rendered a judgment dismissing the appeal by the prosecutor on July 14, 199, and the appellate court rendered a judgment dismissing the appeal by the prosecutor on July 20, 199. The claimant waived the appeal on the same day and appealed the appeal by the prosecutor on July 20, 199. The claimant filed a final appeal on August 25, 1999 on the ground that the period of punishment expires on August 27, 1999, and the defendant cannot be deemed to have renounced the detention order and thus, the part of the appeal becomes void by the prosecutor on July 1994.

3. Therefore, the motion for revocation of detention is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo (Presiding Justice)

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참조판례

- [2] 대법원 1992. 1. 21. 선고 91도1402 전원합의체 판결(공1992, 951)

- 대법원 1995. 6. 13. 선고 94도3250 판결(공1995하, 2428)

- 대법원 1997. 6. 13. 선고 96도2606 판결(공1997하, 2093) (변경)

참조조문

- [1] 형사소송법 제93조 (위헌조문)

- [2] 형법 제37조 (위헌조문)

- 형사소송법 제93조 (위헌조문)