[1] Where a judgment included in the principal sentence is finalized in excess of the actual number of days of detention, whether the excess is effective in the principal sentence (negative)

[2] Whether the judgment included in the calculation can be corrected by correcting the written judgment even though the number of days of detention before the judgment was rendered (affirmative)

[3] Whether the principle of prohibition of disadvantageous alteration applies to a case where the court which made the judgment corrects an obvious error in the judgment through the correction of the judgment (negative)

[4] The case holding that there is no room to apply the principle of prohibition of disadvantageous alteration to the defendant's error that had been erroneously included in the principal sentence due to mistake, although there was no number of days of pre-trial detention in the appellate court, because the defendant was under custody by the execution of a separate final and conclusive judgment during the appellate trial

[1] Article 57 of the Criminal Code provides that all or part of the detention days prior to the pronouncement of judgment shall be included in imprisonment, imprisonment without prison labor, imprisonment without prison labor, fine or minor fine, or detention. Since physical freedom is restricted, considering that there is no substantial difference between the execution of imprisonment and the execution of the sentence, the whole or part of the number of days actually detained shall be included in the principal sentence. Thus, even where the judgment included in excess of the actual number of detention days becomes final and conclusive, the excess portion shall not be included

[2] In sentencing a judgment against an unconvicted defendant, in exceptional cases where Article 57 of the Criminal Code was applied even though the number of days of pre-trial detention prior to the pronouncement of the judgment does not actually exist, it is obvious that there is an error similar to a clerical error in the written judgment, and it can be corrected by

[3] The principle of prohibition of disadvantageous alteration is a system established from the policy consideration of the defendant's intention to exercise the right to appeal, and where only the defendant reduces the inclusion of days of pre-trial detention in the appellate court of the case appealed more disadvantageous to the defendant than the original court, the application of the principle of prohibition of disadvantageous alteration should be examined. However, the court which sentenced the above judgment in the above case did not bring favorable or unfavorable results to the defendant or affect the defendant's exercise of the right to appeal, and thus, there is no room to apply the principle of prohibition of disadvantageous alteration.

[4] The case holding that there is no room to apply the principle of prohibition of disadvantageous alteration to correct errors that have been erroneously included in the original sentence due to mistake in spite of no number of days of pre-trial detention in the appellate court, because the defendant was under a reduction in the execution of a final and conclusive judgment during the appellate court's period of trial

[1] Article 57 of the Criminal Act / [2] Article 57 of the Criminal Act, Article 25 (1) of the Regulation on Criminal Procedure / [3] Article 57 of the Criminal Act, Articles 368 and 399 of the Criminal Procedure Act, Article 25 (1) of the Regulation on Criminal Procedure / [4] Article 57 of the Criminal Act, Articles 368 and 399 of the Criminal Procedure Act, Article 25 (1) of the Regulation on Criminal Procedure

[1] Supreme Court Order 98Mo152 dated January 13, 1999

Defendant

Defendant

Seoul Central District Court Decision 2007No418 Decided April 18, 2007

The appeal is dismissed.

1. We examine the Defendant’s grounds of appeal.

The court below rejected the defendant's mental and physical disability claim on the ground that the defendant did not have the ability to discern things or make decisions under the influence of alcohol at the time of each of the crimes in this case, or did not seem to have any weak condition under the influence of alcohol. In light of the records, the selection of evidence in the court below's decision on the selection of evidence and the fact-finding and decision can be justified and there is no error of law such as misconception of facts due to violation of the rules of evidence, or misunderstanding of legal principles as to mental and physical disability

In addition, the reason that the amount of punishment is excessive is not a legitimate ground for appeal, as imprisonment with prison labor for less than 10 years has been imposed against the defendant.

2. We examine the defendant's assertion on the decision of correction of the written judgment of this case.

A. Article 57 of the Criminal Act provides that the whole or part of the days of detention prior to the pronouncement of judgment (hereinafter “number of days of detention”) shall be included in the confinement of imprisonment, imprisonment without prison labor, imprisonment without prison labor, fine, or minor fine, or detention, in consideration of the fact that physical freedom is restricted, the whole or part of the days of actual detention shall be included in the principal sentence in consideration of the fact that there is no substantial difference between the execution of imprisonment and the execution of the sentence. Thus, even where the judgment included in the actual number of days of detention becomes final and conclusive, the excess portion shall not be included in the principal sentence (see Supreme Court Order 98Mo152, Jan. 13, 199

Meanwhile, according to Article 25(1) of the Regulation on Criminal Procedure, when it is evident that there is a clerical error or other similar error in the written decision, the court may make a decision of correction ex officio.

Therefore, in the case of exceptional cases where Article 57 of the Criminal Act was applied even though the number of days of pre-trial detention prior to the pronouncement of the judgment did not actually exist, it is obvious that there is errors similar to the clerical error in the written judgment and it can be corrected by the correction of the written judgment.

In addition, the principle of prohibition of disadvantageous change is a system established from the policy consideration of the defendant's intention to exercise the right to appeal, and where the defendant reduces the inclusion of days of pre-trial detention disadvantageous to the defendant in the appellate trial of the case that only the defendant appealed to the court below, the application of the principle of prohibition of disadvantageous change should be examined. However, the court that issued the above judgment does not lead to an obvious error in the written judgment, which affected the defendant's favorable or unfavorable outcome or the exercise of the right to appeal, and thus, there is no room to apply the principle of prohibition of disadvantageous change.

B. According to the records, the defendant was sentenced to one year of imprisonment with prison labor at the Seoul Central District Court on October 18, 2006 and dismissed on January 5, 2007, and the judgment of the court below became final and conclusive at the time of the judgment of the court below, and the defendant was under confinement due to the execution of a final and conclusive judgment due to the above habitual fraud, so in the case of judgment of the court below, the number of days of detention of the court below to be included in the judgment of the court below did not exist at all. The court below, without any specific ground on April 18, 2007, dismissed pursuant to Article 364 (4) of the Criminal Procedure Act and dismissed it pursuant to Article 57 of the Criminal Act, stating that "the defendant shall be included in the sentence of the court below 74 days in the number of days under detention before the judgment of the court below is included in the sentence of the court below." The court below ordered 207 days in the judgment of the court below as to the defendant's immediate appeal from 407 days prior to this case.

C. Examining the aforementioned legal principles and records in light of the legal principles as seen earlier, it is reasonable to view that the court below’s decision of correction of the written judgment in this regard is legitimate and acceptable, and there is no error that the court below’s decision of correction of the written judgment in this regard is unlawful, as it is obvious that there is error in the written decision of the court of first instance included 74 days in the written decision of the court of first instance in the written decision of the court below prior to the pronouncement of the judgment of the court of first instance, and there is no room to apply the prohibition of disadvantageous alteration to the written decision of this case. Accordingly, the court below’s decision of correction of the written judgment in this regard is just and acceptable, and there is no error of law such as unjust disadvantage to the defendant as alleged by the defendant.

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

Justices Kim Yong-dam (Presiding Justice)