The case where the appellate court reversed the judgment of the appellate court and rendered a judgment of the first instance on the grounds that the appellate court did not add up the number of days pending trial in the first instance court while accepting the defendant's grounds for appeal of unfair sentencing, reversed the judgment of the appellate

The case where the appellate court reversed the judgment of the court of appeal and rendered a judgment of the court of first instance on the grounds that the defendant's grounds for appeal on unfair sentencing are reversed, and that the court of first instance did not add the number of days pending trial in the court of first instance, and

Article 57 of the Criminal Act, Article 482 of the Criminal Procedure Act

Supreme Court Decision 71Do1289 delivered on September 28, 1971 (Gong19(3) 9) decided November 13, 1979 (Gong1980, 12370)

Defendant

Defendant

Attorney Jin-jin

Gwangju District Court Decision 90No552 delivered on June 27, 1991

The judgment of the court below and the judgment of the first instance are reversed.

A defendant shall be punished by imprisonment for not less than eight months.

50 days of detention prior to the imposition of judgment in the first instance shall be included in the above imprisonment.

However, the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

We examine the grounds of appeal.

According to the timely evidence of the judgment of the court of first instance cited by the judgment of the court below, there is no violation of the rules of evidence, such as the theory of lawsuit, in finding the facts constituting the crime of this case. The argument

We examine ex officio.

According to the records, the court below reversed the judgment of the court of first instance regarding the defendant's grounds for appeal on the grounds of unfair sentencing, and sentenced the defendant for 8 months in imprisonment and 2 years in suspension of execution, and did not add up the number of days of detention in the court of first instance. The number of days of detention prior to the judgment should be included in the period of imprisonment, imprisonment without prison labor, imprisonment without prison labor, fine or minor fine, or penal detention, except in a case where the whole or part of the days of detention prior to the judgment is legally binding under Article 482 of the Criminal Procedure Act. As seen above, the court below erred in the application of the law and affected the judgment by failing to add the number of days of detention prior to the judgment of the court of first instance. Thus, the reversal of the judgment of the court below is not possible.

The summary of the grounds for appeal by the defendant is that the mistake of facts caused by the violation of the rules of evidence and the sentencing of the first instance court is unfair. According to the records, the facts finding of the first instance court is acceptable, and there is no error of violation of the rules of evidence, but there is an error of unfair sentencing, such as the recognition of the original judgment, and therefore, the appeal by the defendant is justified, and ultimately, the judgment of the first instance court is reversed and the judgment is

The criminal facts and the summary of the evidence against the defendant recognized by the trial court are as shown in the judgment of the court of first instance. Thus, this is cited by Articles 399 and 369 of the Criminal Procedure Act.

As the court below's decision falls under Article 347 (1) of the Criminal Act, the defendant's judgment in the court below shall be applied to the law, and the defendant shall be punished by imprisonment for not more than 8 months within the prescribed term of punishment, and 50 days of detention prior to the pronouncement of the judgment in the first instance pursuant to Article 57 of the same Act shall be included in the above punishment, but the defendant shall have reasonable grounds for considering the circumstances, so the execution of the above punishment shall be suspended for 2 years from the date when the judgment became final and conclusive in accordance with Article 62 (1) of the same Act. It

Justices Park Jong-dong (Presiding Justice) Kim Sang-ho (Presiding Justice)