Whether the proviso to Article 54(1) of the Juvenile Act and the short-term restriction may be mitigated for juvenile offenders when mitigated.

Since discretionary mitigation under Article 53 of the Criminal Act is a process of setting a sentence by reducing the statutory punishment and determining the sentence within the scope of the sentence, the court shall determine the sentence within the scope of the sentence, the proviso of Article 54(1) of the Juvenile Act is nothing more than setting the upper limit of the non-scheduled sentence for a juvenile, and the defendant does not have any provision of the statutory punishment, and therefore there is a reason for discretionary mitigation under Article 53 of the Criminal Act, the upper limit of the non-scheduled sentence under the above Juvenile Act does not have to be mitigated.

Article 53 of the Criminal Act, Article 54(1) of the Juvenile Act

Defendant

Defendant

Attorney Kim Tae-won

Seoul High Court Decision 83No236 delivered on March 16, 1983

The appeal is dismissed.

The thirty-five days of detention days after the appeal shall be included in the original sentence.

The grounds of appeal by the defendant and the public defender are also examined.

In this paper, first of all, in the case of discretionary mitigation for the defendant who is a juvenile pursuant to Article 53 of the Criminal Act, the court below's decision that is against the defendant for a short term of three years and six months in excess of the short term of two years and six months should be mitigated, as provided in the proviso of Article 54 (1) of the Juvenile Act.

However, discretionary mitigation under Article 53 of the Criminal Act is the process of setting a sentence by reducing the statutory punishment, and the court decides the sentence within the scope of the sentence. The proviso of Article 54(1) of the Juvenile Act is merely setting the upper limit of the non-scheduled sentence for juveniles, and it does not stipulate the statutory punishment. Therefore, it is not reasonable to discuss the theory such as the theory that the upper limit of the non-scheduled sentence under Article 53 of the Criminal Act should also be mitigated, on the ground that there is a reason for discretionary mitigation under Article 53 of the Criminal Act.

In addition, the issue appears to the purport of asserting that the defendant's disposition against the defendant was an excessive disposition, and that in this case where a sentence of less than ten years is imposed, an unreasonable sentencing sentence may not be deemed a legitimate ground for appeal, in light of the provisions of Article 383 subparagraph 4 of the Criminal Procedure Act, and the above issue is also groundless.

Therefore, the appeal shall be dismissed and the thirty-five days of detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Lee Sung-soo (Presiding Justice)