[1] Whether the number of days of pre-trial detention in excess of the actual number of days of pre-trial detention shall be included in the calculation of the original sentence (affirmative)

[2] Whether the number of days of pre-trial detention in excess of the actual number of days of pre-trial detention is included in the original sentence (affirmative)

[1] In a case where a defendant is detained in the course of an investigation or a trial, the total number of days of detention prior to the pronouncement of a judgment under Article 57 of the Criminal Act is to be included in the original sentence, taking into account the fact that there is no substantial difference between the execution of a sentence of imprisonment and the execution of a sentence of imprisonment in that the defendant is not sentenced to imprisonment, and that there is no substantial difference between the execution of a sentence of imprisonment and the restriction of physical freedom. Therefore, in light of the ideology and nature of the system, the decision to include the number of days exceeding the number of days actually detained in the original sentence is unlawful by erroneous application of Article 57 of the Criminal Act and the decision to include the number of days exceeding the number

[2] Under Article 57 of the Criminal Code, the number of detention days before the sentence is made refers to the sum of the days from the lawful detention to the day before the sentence is made. The calculation itself is clear in that the discretion of the judge is calculated without any possibility to intervene, and unlike the sentence of the principal sentence, the defendant can also calculate and forecast the number of detention days in advance (However, whether the number of detention days is calculated in whole or in part or in part may be calculated by taking account of all the circumstances shown in the trial process as separate issues, and if the number of detention days is calculated in excess of the actual number of detention days, it is illegal to apply Article 57 of the Criminal Code erroneously to the case where the number of detention days is calculated in excess of the actual number of detention days, and it is also subject to correction.

[1] Article 57 of the Criminal Code / [2] Article 57 of the Criminal Code, Article 25 of the Regulation on Criminal Procedure

[1] Supreme Court Decision 89Do808 delivered on November 10, 1989 (Gong1990, 64) Supreme Court Decision 91Do1196 delivered on July 26, 1991 (Gong1991, 2281) Supreme Court Decision 93Do2563 delivered on February 8, 1994 (Gong1994Sang, 1041) Supreme Court en banc Decision 95Do2500 delivered on January 23, 1996 (Gong196Sang, 708) (Gong199Sang, 199Sang, 97)

Defendant

Defendant

Jeju District Court Order 98 seconds509 dated November 9, 1998

The appellant's appeal is dismissed.

1. The record of this case reveals the following facts.

A. On February 24, 1998, the Defendant was arrested under a warrant of arrest on charges of violating the Illegal Check Control Act, and was detained on February 26, 1998, and was charged with the same crime on March 5, 1998.

On June 2, 1998, the first instance court rendered a judgment that "the defendant shall be punished by imprisonment with prison labor for one year, and the number of detention days prior to the pronouncement of this judgment shall be included in the above sentence" on June 2, 1998.

B. The Defendant filed an appeal against the above judgment on the day when the sentence was rendered, but the appeal was withdrawn on June 3, 1998, which is the following day, and the above judgment became final and conclusive on June 3, 1998, which is the same day (the Defendant asserts that he withdrawn the appeal with the knowledge that the number of days pending trial was included more than the actual number of days pending trial after filing an appeal against the original judgment, but that he knew that the number

C. On July 29, 1998, the prosecutor of the Jeju District Prosecutors' Office directed the head of the Jeju Correctional Institution to execute the sentence against the defendant on July 29, 199, on the execution of the sentence against the defendant according to the above judgment, one year of imprisonment, 98 days of pre-trial detention (the days of pre-trial detention by the defendant), and on June 3, 1998 of the date of the period of punishment

D. While the Defendant raised an objection against the execution of punishment, the court of original judgment rejected the Defendant’s application on the ground that the Defendant’s application is just and without merit.

2. Judgment on the grounds of appeal

The gist of the grounds for appeal of this case is as follows: once the above judgment against the defendant becomes final and conclusive, 163 days according to the judgment which is not 98 days of actual detention according to the judgment, shall be included in the number of days of detention, and the sentence shall be executed, and the defendant withdraws the appeal with the knowledge that the period of detention should be added to the number of days of detention in lieu of lowering the sentence when the defendant is sentenced to the punishment. Furthermore, if the defendant did not withdraw an appeal, the appellate court should accept it as it is in the principle of prohibition against disadvantageous change even if the number of days of detention in the court of first instance was erroneously included in the number of days of detention in the court of first instance. In light of the above, the appellate court's dismissal of

The sum of the days of detention prior to a judgment under Article 57 of the Criminal Act, when the defendant is detained in the course of an investigation or a trial, considering the fact that the custody is not a punishment but a physical freedom is restricted, the execution of the sentence should be included in the original sentence in consideration of the fact that there is no substantial difference between the execution of the sentence and the execution of the sentence. Therefore, in light of the ideology and nature of the system, the judgment that included the days exceeding the days actually detained in the original sentence in light of the ideology and nature of the system, the judgment that included the days exceeding the days actually detained in the original sentence is unlawful by applying Article 57 of the Criminal Act as well as by applying Article 57 of the Criminal Act (see Supreme Court Decision 93Do2563, Feb. 8, 1994). Furthermore, even where the judgment included in excess becomes final in the form of

In addition, Article 25 of the Regulation on Criminal Procedure provides that "if it is obvious that there is any error in writing or any other similar error in the decision, it may be made ex officio or upon request of the parties, the decision may be made." In principle, the decision becomes effective as the decision is made in the court court, and in light of the importance of the decision and the protection of the defendant's trust, etc., even though the decision is not made in relation to the substance of the decision from among the contents of the decision sentenced in the court court, especially the main sentence, and even if there is a mistake in violation of the law, the final decision shall be made unless it becomes final and conclusive, and it is clear that it does not constitute the object of correction of the decision (e.g., where the statutory punishment is imposed for a limited term of five or more years, even if mitigation of the amount of imprisonment is determined, it cannot be made less than two years and six months, and the number of days prior to the decision can be calculated by adding up the number of days from the date when the defendant was lawfully detained to the day before the decision was made, and it cannot be calculated in advance.

In addition, the principle of prohibition of disadvantageous change under the Criminal Procedure Act is merely a system established as a policy to guarantee the defendant's right to appeal, and in case the defendant appealed only, even if the number of days of detention in the court below's order was excessive than the actual number of days of detention, the appellate court cannot immediately render a judgment disadvantageous to the defendant (the purport of the Supreme Court Decision 95Do2500 delivered on January 23, 1996, which is required by the appellant), and the judgment of the court below becomes final and conclusive after the waiver or withdrawal of appeal, and there is an obvious error in the decision of the court, and the principle of prohibition of disadvantageous change should not be applied by analogy to the case where the correction of the number of days of detention in the court below or execution by the actual number

Therefore, it is interpreted that in the case where the judgment that included the number of days of detention exceeding the actual number of days of detention in the principal sentence becomes final and conclusive as in the instant case, the number of days actually detained should be included in the principal sentence.

3. Conclusion

Therefore, the order of the court below is just and the defendant's appeal is dismissed. It is so decided as per Disposition.

Judges Kim Jong-sung (Presiding Judge)