Whether the judgment of the first instance is unlawful to include only part of the days pending the judgment in the principal sentence, and to include the period of detention from the day following the date of application for challenge until the date of decision on rejection of reappeal in the case of challenge in the principal sentence (negative)

According to Article 92 (3) of the Criminal Procedure Act, the period in which trial proceedings have been suspended due to an application for challenge under Article 22 of the same Act shall not be included in the period of detention. The purport thereof is to secure the period of trial in the merits. As such, the period of detention in the state in which trial proceedings have been suspended due to an application for challenge is to secure the period of trial. Therefore, the period of detention in the state in which the trial proceedings have been suspended shall be included in the period of detention prior to sentencing. Therefore, the period of detention in the first instance judgment is erroneous. However, as long as the period of detention prior to sentencing is not legally included, unless it is legally included, it shall be included in the period of detention in the whole or part. Thus, the issue of whether the period of detention in the court of first instance should be included in the period of detention in the original sentence or the period of only part

Articles 22, 92(3), 57 of the Criminal Procedure Act

Supreme Court Decision 69Do269 Decided April 22, 1969 (Gong17-2, 7) Supreme Court Decision 82Do2528 Decided November 22, 1983 (Gong1984, 134), Supreme Court Decision 86Do1669 Decided October 28, 1986 (Gong1986, 3158), Supreme Court Decision 91Do353 Decided April 26, 1991 (Gong191, 1566), Supreme Court Decision 93Do2505 Decided November 26, 193 (Gong194, 228)

Defendant

Defendant

Attorney Lee Jin-jin

Seoul Eastern District Court Decision 2005No204 decided June 23, 2005

The appeal is dismissed. 110 days out of the number of detention days after the appeal shall be included in the original sentence.

1. The court below affirmed the judgment of the court of first instance which found the defendant guilty of each of the above crimes on the grounds that the defendant committed each crime of fraud in the judgment against the non-indicted 1, 2, 3, and 4, the violation of the Punishment of Violences, etc. Act (even at night and joint damage) in the judgment against the non-indicted 5 taxi and the crime of obstruction of performance of official duties in the judgment against the non-indicted 6, 7. In light of the records, the court below's evidence preparation, fact-finding, and judgment are acceptable, and there is no error in the misapprehension of legal principles as to facts against the rules of evidence, the principle of non-indicted 1, 3, and 4, the principle

2. According to Article 92(3) of the Criminal Procedure Act, the period in which trial proceedings have been suspended due to an application for challenge under Article 22 of the same Act shall not be included in the period of detention. The purport thereof is to secure the period of trial on the merits. As such, the period of detention in which trial proceedings have been suspended due to an application for challenge shall be included in the period of detention prior to the rendering of a judgment. Therefore, it is erroneous that the judgment of the court of first instance is not included in the period of detention prior to the rendering of a judgment. However, as long as the period of detention prior to the rendering of a judgment is not naturally included in the law, the issue of whether it should be included in the whole period or only part thereof belongs to the discretion of the court of final judgment (see Supreme Court Decisions 69Do269, Apr. 22, 1969; 82Do2528, Nov. 28, 1986; 86Do1696, Oct. 16, 1997).

3. The argument that the sentence of the court below is excessive cannot be a legitimate ground for appeal, as it was sentenced to imprisonment for less than 10 years against the defendant.

4. Therefore, the appeal shall be dismissed. 110 days out of the number 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 Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)