(a) Whether the number of days pending trial has been counted excessively than the number of days for calculation;

B. Whether the number of days of detention to be included in the principal sentence constitutes a disadvantageous change if the number of days of detention to be included in the principal sentence reduces the number of calendar days as a whole because the principal sentence is unhulled compared to the first instance court even if the number of days

A. On November 29, 1992, and the date of the first instance judgment, which was detained on April 28, 1993, is obvious that the number of days of detention before the sentence is 150 days, and thus, it is unlawful to apply Article 57 of the Criminal Act to the inclusion of 180 days of detention in the principal sentence.

B. Where only the Defendant appealed against the judgment of the court of first instance, even if the court below reduces the number of days of pre-trial detention to be included in the principal sentence to the court of first instance, if the principal sentence is equal to that of the court of first instance, and the overall reduction is eventually made, the sentence of the court of first instance cannot be deemed to be disadvantageous to the Defendant, rather than that of the court of

A. Article 57 of the Criminal Procedure Act

A. Supreme Court Decision 4292Do782 delivered on March 9, 1960 (No. 84) 83Do1709 delivered on September 13, 1983 (Gong1983,1544) (Gong144 delivered on December 27, 1966)

Defendant

Prosecutor

Incheon District Court Decision 93No404 delivered on July 1, 1993

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.

150 days of detention before a judgment of the court of first instance is rendered shall be included in the above sentence.

The prosecutor's grounds of appeal are examined.

According to the reasoning of the judgment below and the judgment of the court of first instance, the court of first instance sentenced the defendant to one year of imprisonment and included 180 days of pre-trial detention, and only the defendant appealed, the court below reversed the judgment of first instance, sentenced the defendant to eight months of imprisonment, and included 180 days of pre-trial detention.

However, according to the records, the defendant was detained on November 29, 1992 and the date of sentence of the court of first instance can be known to be April 28, 1993. Accordingly, it is obvious that the period of detention prior to the sentence of the court of first instance is calculated as 150 days. Thus, the court below erred by applying Article 57 of the Criminal Act to which the number of days of detention prior to the sentence of the court of first instance was included in the principal sentence, thereby affecting the conclusion of the judgment.

In a case where only the defendant appeals against the judgment of the court of first instance, even if the court below reduces the number of days pending trial to be included in the principal sentence to the court of first instance, if the principal sentence of the court of first instance is equal to that of the court of first instance, and the whole reduction is, the sentence of the court of first instance cannot be deemed to change disadvantageously to the defendant than that of the court of first instance. Thus, the court of first instance that accepted the grounds for appeal on unfair sentencing of the defendant, and reversed the first instance judgment, should have immediately corrected the violation of the above law, unless it is disadvantageous to the defendant

Therefore, the court below's decision that did not reach this point is erroneous in violation of Article 57 of the Criminal Act, and therefore is justified.

Therefore, the judgment of the court below is reversed, and this case is sufficient to read, and it is decided directly by the members in accordance with Article 396 of the Criminal Procedure Act.

First of all, examining the evidence presented by the first instance court in light of the records, since each crime of Article 5, 6, and 7 of the judgment against the defendant is sufficiently recognized, there is no reason for misconception of facts among the grounds for appeal by the defendant

However, in light of the various factors such as the defendant's age, character and conduct, environment, background leading to the crime of this case, and agreement with the victim, etc., the first instance court's punishment is deemed to be too unreasonable, and thus, the defendant's appeal is accepted and the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act and the judgment is ruled as follows.

(Criminal Facts and Summary of Evidence)

The summary of the facts constituting the crime of this case and the evidence is identical to that of the judgment of the court of first instance, thereby citing it as it is.

(Application of Acts and subordinate statutes)

1. Article 2 (2) and (1) of the Punishment of Violences, etc. Act, Article 257 (1), Articles 260 (1) and 347 (1) of the Criminal Act (the choice of each imprisonment with prison labor);

1. Aggravation of concurrent crimes with punishment prescribed in the former part of Article 37, Articles 38 (1) 2 and 50 of the Criminal Act;

1. It is so decided as per Disposition by the assent of all participating Justices on the ground that Article 57 of the Criminal Act (including 150 days of detention days before a judgment in the first instance is rendered) is more than

Justices Kim Jong-ju (Presiding Justice)