Defendant

Prosecutor

Cheongju District Court Order 2010 Ma1 dated January 12, 2010

The immediate appeal of this case is dismissed.

1. Summary of grounds for appeal;

The Constitutional Court’s decision of unconstitutionality based on the original decision (the Constitutional Court Order 2007HunBa25, Jun. 25, 2009) is subject to Article 57(1) of the Criminal Act regarding the inclusion of the period of detention prior to the imposition of a sentence. As such, as in the instant case, there was no specific legislation regarding the inclusion of the period of detention prior to the imposition of a sentence from the period of appeal to the date of withdrawal of an appeal. As such, the prosecutor’s disposition of ordering execution, which does not include the period of detention from the period of appeal to the date of withdrawal of an appeal, is unreasonable. The original decision is in violation of the Act that affected the conclusion of the judgment.

2. Determination

In light of the purport of the Constitutional Court’s decision that “unconvicted detention does not substantially differ from the execution of imprisonment when considering the perspective of the suspect or the accused whose physical freedom is infringed, and thus, should be included in the term of imprisonment in its entirety in the principle of human rights protection and equity” under Article 57 of the Criminal Act based on the purport of the Constitutional Court’s decision of unconstitutionality as to Article 57 of the Criminal Act, it is justifiable to determine that the prosecutor’s disposition of ordering the execution of the punishment of this case, which decided that the number of days detained pending trial should not be included in the term of imprisonment from the time when the appeal was filed to the time when the appeal was withdrawn, is unreasonable. However, in light of the purport of the decision of unconstitutionality as alleged by the prosecutor, even if no explicit legal ground is provided, it is difficult to view that the prosecutor’s appeal based on the above decision of unconstitutionality

3. Conclusion

Therefore, the original decision accepting the defendant's objection is just, and since the prosecutor's immediate appeal of this case is without merit, it is dismissed in accordance with Article 414 (1) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Jin-jin (Presiding Judge)