[1] Method of appeal against a decision by an appellate court (=Re-appeal to the Supreme Court)

[2] In a case where the defendant re-appeals against the decision of dismissal rendered ex officio by the appellate court on the ground that the appeal filed by the defendant was a new application for correction, and the defendant's application for correction was dismissed, the case holding that the Supreme Court revoked the above decision of dismissal and recognized the defendant as a reappeal against the decision of dismissal rendered by the appellate court on the ground that it

[3] Where an error is found in the calculation of the number of days pending trial of the judgment, the scope of correction permitted by the decision of correction, and where the judgment included in the calculation of the original sentence in excess of the actual number of days pending trial of the judgment becomes final and conclusive, whether the excess

[1] Article 415 of the Criminal Procedure Act provides that "an immediate appeal may be filed with the Supreme Court only on the ground of a violation of the Constitution, Acts, subordinate statutes, orders, or rules that affected the judgment of the appellate court or the high court." Thus, the decision of the appellate court shall be contested by a reappeal to the Supreme Court.

[2] In a case where a defendant filed an appeal against a decision of dismissal made ex officio by the appellate court, the appellate court considered it as a reappeal and sent records to the Supreme Court, but the defendant re-appealed against the decision of the appellate court that dismissed the request of correction by deeming it as a new application of correction, the case holding that the Supreme Court revoked the decision of dismissal made by the appellate court on the ground that it is a decision made by a court which is not authorized by the appellate court and recognized it as a reappeal against

[3] According to Article 25(1) of the former Rules on Criminal Procedure (amended by Supreme Court Regulation No. 2106 of Oct. 29, 2007), the court may decide to correct the number of days of pre-trial detention only to “when it is evident that there is an error in time or any other similar mistake.” Therefore, even though the days of pre-trial detention do not exist at all, where the period of pre-trial detention is included, it is obvious that there is an error similar to the error in the written judgment and can be corrected by the correction of the written judgment. In addition, even if it is apparent that the period of pre-trial detention was included in the written judgment, such as stating “number of days of pre-trial detention” in the written judgment, even if there is an error in which only the number of days of pre-trial detention is less than the actual number of days of pre-trial detention is included in the written judgment, it is reasonable to deem that it can be corrected by the correction of the written judgment. However, even if the period of pre-trial detention exceeds the actual number of days of pre-trial detention.

[1] Article 415 of the Criminal Procedure Act / [2] Article 415 of the Criminal Procedure Act / [3] Article 57 of the Criminal Act, Article 25 (1) of the former Rules on Criminal Procedure (amended by Supreme Court Regulation No. 2106 of October 29, 2007)

[1] Supreme Court Order 73Mo72 dated December 28, 1973 (Gong1974, 7715), Supreme Court Order 2002Mo6 dated September 27, 2002 (Gong2002Ha, 2649) / [3] Supreme Court Decision 2007Do3448 Decided July 3, 2007 (2007Ha, 1334)

Defendant

Defendant

Seoul Southern District Court Order 2007Hu2055 dated October 18, 2007

The order of the court below shall be revoked. The decision made on October 15, 2007 by the Seoul Southern District Court as to the case of 2007No506 violation of the Toxic Chemicals Control Act shall be revoked.

1. Ex officio determination

Article 415 of the Criminal Procedure Act provides that "an immediate appeal may be filed with the Supreme Court only on the ground that there is a violation of the Constitution, Acts, orders or rules that have affected the judgment of the appellate court or the high court." Thus, the decision of the appellate court should be contested by a re-appeal to the Supreme Court.

According to the records, the Re-Appellants filed an appeal against the decision of correction on October 15, 2007, ex officio on the case of violation of the Toxic Chemicals Control Act (hereinafter "the decision of correction in this case") by the Panel Division of the Seoul Southern District Court, which is the appellate court, on the same court's 2007No506. Thus, although the above court should regard it as re-appeal and send records to the Supreme Court, the above court should regard it as a new case of request for correction and dismiss it as a new case of request for correction. Thus, the judgment of the court below shall be revoked, and the reappeal in this case shall be treated as a reappeal for the decision of correction in this case (see Supreme Court Order 2002Mo6, Sept. 27, 2002, etc.).

2. Judgment on the grounds for reappeal

According to Article 25(1) of the former Rules on Criminal Procedure (amended by Supreme Court Regulation No. 2106, Oct. 29, 2007), the court may decide to correct the number of days of pre-trial detention only “when it is evident that there is an error in time or any other similar error.” Therefore, where the number of days of pre-trial detention is included even though the number of days of pre-trial detention does not actually exist, it is obvious that there is an error similar to a clerical error in the written judgment and can be corrected by correction of the written judgment (see Supreme Court Decision 2007Do3448, Jul. 13, 2007). In addition, even in cases where there is an error in which only the number of days of pre-trial detention is less than the number of days of pre-trial detention actually existing in the written judgment, it is reasonable to view that it can be corrected as a correction of the written judgment even in cases where there is an error in which only one of the days of pre-trial detention is included in the court sentence.

According to the records, on July 27, 2007, the collegiate panel of the Seoul Southern District Court (Seoul Southern District Court) rendered a decision to include only part of the number of days of detention in the appellate trial out of the number of days of detention in the appellate trial, on the following grounds: “The defendant’s appeal is dismissed. The number of days of detention in the appellate trial prior to the pronouncement of this decision shall be included in the punishment of the lower court.” The above court found that the defendant’s actual number of days of detention in the appellate trial is only 114 days after the above judgment became final and conclusive. On October 15, 2007, the court rendered a decision to correct the instant decision to change “135 days out of the number of days of detention in the appellate court” to “105 days out of the number of days of detention in the appellate court.”

However, in light of the legal principles as seen earlier, as long as the above court rendered a judgment in the form of including only a part of the number of days of detention in the first time, even if it was found that the number of days of detention exceeded 114 days later, if it was found from the beginning that the actual number of days of detention was 114 days, it cannot be known only by the statement in the written judgment, and therefore, it cannot be allowed to correct it by the correction of the written judgment. Thus, the decision of correction in this case cannot be upheld any longer.

3. Conclusion

Therefore, the order of the court below shall be revoked and the decision of this case shall be revoked, and it is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)