[1] Where a defendant appealed the judgment of the court of first instance on the sole ground of unfair sentencing as a ground for appeal, whether the judgment of the court of first instance may be used as a ground for appeal for misconception of facts or misapprehension of legal principles

[2] The case where the part of the judgment below concerning custody cases was reversed ex officio since the Social Protection Act was repealed after the judgment of the court below

[1] In a case where the defendant appealed the judgment of the court of first instance on the sole ground of unfair sentencing, and the appeal is dismissed, the defendant cannot make a ground of appeal that there was an error of mistake of facts or misapprehension of legal principles against the judgment of the court of

[2] The case reversing ex officio the part of the judgment of the court below regarding protective custody case among the judgment below on the ground that the Act repealed by Act No. 7656 of Aug. 4, 2005 and the Act repealed by Act No. 7656 of Aug. 4, 2005 should be repealed, while Article 3 of the Addenda of the Act provides that the request for protective custody should be dismissed at the time

[1] Article 383 of the Criminal Procedure Act / [2] Article 383 subparagraph 2 of the Criminal Procedure Act, Article 384 of the Act, Article 3 of the Addenda to the Social Protection Act ( August 4, 2005)

[1] Supreme Court Decision 94Do2134 delivered on February 3, 1995 (Gong1995Sang, 1195) Supreme Court Decision 2002Do7115 delivered on February 11, 2003 (Gong2003Sang, 870 delivered on April 28, 2004)

Defendant

Defendant and Appellant for Custody

Attorney Lee So-young

Seoul High Court Decision 2005No621, 2005No9 decided May 11, 2005

The part of the judgment of the court below and the judgment of the court of first instance concerning custody cases shall be reversed, and the appeal of this case shall be dismissed. The appeal concerning a prosecuted case shall be dismissed. The 110 days out of detention days after

The grounds of appeal by the defendant and the respondent for defense (hereinafter referred to as the "defendant") and the state appointed defense counsel are also examined.

1. Defendant case;

In light of the records, the defendant filed an appeal against the judgment of the first instance on the sole ground of unfair sentencing as the grounds for appeal, and the appeal was dismissed. In such a case, the defendant cannot be viewed as the grounds for appeal that there was an error of mistake of facts or misapprehension of legal principles against the judgment of the court below (see Supreme Court Decisions 94Do2134, Feb. 3, 1995; 2002Do7115, Feb. 11, 2003; 2004Do927, Apr. 28, 2004, etc.).

Furthermore, according to the records, the court below's decision that affirmed the judgment of the court of first instance that found the defendant guilty of the crime of habitual larceny in violation of the Act on the Aggravated Punishment, etc. of Specific Crimes is just and there is no error of law by misunderstanding the legal principles as to habitual larceny, as

On the other hand, the argument that punishment is too heavy is not a legitimate ground for appeal in this case where one year and six months have been sentenced to imprisonment.

All of the grounds of appeal cannot be accepted.

2. As to custody cases

We examine the grounds of appeal ex officio prior to judgment.

In full view of all the circumstances in the judgment below, the court below judged that the defendant's risk of recidivism is recognized, and maintained the first instance judgment in protective custody pursuant to Article 5 subparagraph 1 of the Social Protection Act.

However, after the judgment of the court below was rendered, the Act repealed by Act No. 7656 of Aug. 4, 2005 and the Act repealed by the Social Protection Act should be repealed, while Article 3 of the Addenda provides that the court shall dismiss the judgment with respect to protective custody claim pending at the time of the enforcement of the above Act. Thus, the facts constituting the cause of protective custody claim in this case cannot be dismissed ex officio under Article 384 and Article 383 subparag. 2 of the Criminal Procedure Act.

3. Conclusion

Therefore, without examining the Defendant’s grounds of appeal, the part concerning custody cases in the judgment of the court below is reversed, and this part of the case is sufficient to be tried directly by the court. Thus, pursuant to Article 396(1) of the Criminal Procedure Act, the part concerning custody cases in the judgment of the court of first instance shall be reversed, and the Defendant’s appeal shall be dismissed, and the custody claim of this case shall be dismissed. It is so decided as per Disposition by the assent

Justices Lee Han-gu (Presiding Justice)