[1] In a case where a defendant was detained for a crime different from that stated in the previous detention warrant at the time of expiration of the detention period, whether such circumstance alone is in violation of the detention period against the defendant (negative)

[2] The purport of the provision of Article 72 of the Criminal Procedure Act and in a case where a court issued a detention warrant without going through the procedure under the same provision in issuing a detention warrant to the defendant, but the defendant already appointed a defense counsel and submitted a vindication and evidence in the trial proceedings and was sentenced to a judgment under his defense, whether the decision to issue the detention warrant is unlawful (negative with qualification)

[3] The case holding that even if the court did not go through the procedure stipulated in Article 72 of the Criminal Procedure Act before issuing a warrant of detention to the defendant, the decision to issue the warrant of detention is not deemed unlawful on the ground that the procedural right under the same provision

[4] Where Article 88 of the Criminal Procedure Act is violated, whether a detention warrant becomes void (negative)

[1] Article 75 (1) of the Criminal Procedure Act provides that "a warrant of detention shall not commence execution after the lapse of the term of validity of the defendant's name, residence, name of the crime, summary of the facts charged, place of detention, the date of issuance, the date of issuance, and the purport that the warrant shall not be returned and shall be signed and sealed by the presiding judge or a commissioned judge." Thus, the effect of detention shall, in principle, be limited to the facts stated in the warrant of detention prepared in the above method, and therefore, the detention against the defendant cannot be deemed unlawful merely because the defendant was detained for facts different

[2] Article 72 of the Criminal Procedure Act provides that "the summary of the crime, the grounds for detention, and the opportunity to defend the defendant shall not be detained unless the defendant has been given an opportunity to defend himself/herself." This provision provides the procedure of prior hearing by a judge in the detention of the defendant, and it is a procedure to be taken by the judge of the court of the lawsuit, etc. in the execution of the detention warrant, not the procedure to be taken by the executing agency, but to be taken by the judge of the court of the lawsuit in the execution of the detention warrant. Thus, if the court issued the detention warrant without going through the procedure under the above provision in advance in issuing the detention warrant to the defendant, the decision to issue the warrant shall be unlawful. However, since the above provision aims to guarantee the procedural right of the defendant, if the procedural right as prescribed in the above provision is already guaranteed, such as where the defense counsel is already selected in the trial procedure and the evidence is presented and the judgment under his/her defense is sentenced, such decision

[3] The case holding that even if the court did not follow the procedure stipulated in Article 72 of the Criminal Procedure Act before issuing a detention warrant to the defendant, the decision to issue the detention warrant shall not be deemed unlawful on the ground that the procedural right under the same provision is substantially guaranteed

[4] Article 88 of the Criminal Procedure Act provides that "When the defendant is detained, the summary of the facts charged and the fact that he/she can appoint a defense counsel shall be notified immediately." This is a provision concerning the ex post facto hearing procedure, and it does not affect the validity of the detention warrant.

[1] Articles 70, 75(1), 92, and 208 of the Criminal Procedure Act / [2] Article 72 of the Criminal Procedure Act, Article 52 of the Rules on Criminal Procedure / [3] Article 72 of the Criminal Procedure Act, Article 52 of the Rules on Criminal Procedure / [4] Article 88 of the Criminal Procedure Act, Article 52 of the Rules on Criminal Procedure

[1] Supreme Court Order 96Mo46 dated August 12, 1996 (Gong1996Ha, 2922) / [2] Supreme Court Order 85Mo12 dated July 23, 1985 (Gong1985, 1308)

Re-appellant

Seoul District Court Order 98No4082 delivered on July 7, 2000

The reappeal is dismissed.

1. Article 75(1) of the Criminal Procedure Act provides that "a warrant of detention shall not commence execution after the lapse of the term of validity of the defendant's name, residence, name of the crime, summary of the facts charged, the place of detention, the date of issuance, the date of issuance, and the purport that the warrant shall not be returned, and shall be signed and sealed by the presiding judge or a commissioned judge." Thus, the effect of detention shall, in principle, be limited to the facts stated in the warrant of detention prepared in the above method, and therefore, the detention against the defendant cannot be deemed unlawful merely because the defendant was detained for facts constituting an offense different from the facts stated in the previous warrant of detention at the expiration of the term of detention (see Supreme Court Order 9

According to the records, although the first detention warrant sign of this case on the re-appellant stated that it is one of the name of the crime, the facts charged in the detention warrant of this case does not contain any indication of the accusation, so the effect of the first detention warrant of this case does not extend to the facts charged in the accusation in principle, and there is no special circumstance to deem that it is valid to the facts charged in the accusation.

Therefore, the court below's issuance of the second detention warrant of this case to the re-appellant of the facts charged as the charge of detention warrant is just, and there is no violation of the relevant provisions such as the Constitution, the Criminal Procedure Act, and the Regulation on Criminal Procedure as alleged in the grounds for reappeal.

2. As long as the detention period of the second detention warrant against the re-appellant is lawful due to facts constituting an offense different from the facts stated in the previous detention warrant at the time of the expiration of the detention period of the defendant, the detention period of the second detention warrant of this case against the re-appellant is separate from the detention period of the first detention warrant of this case. Thus, the grounds for reappeal that the detention period of the second detention warrant of this case should be included in the detention period of the first detention warrant of this case cannot be accepted

3. Article 72 of the Criminal Procedure Act provides, "The summary of the crime, the reason for detention, and the opportunity to defend the defendant shall not be detained unless the defendant has been given an opportunity to defend himself/herself." This provision provides the procedure of prior hearing by a judge in the detention of the defendant. In the execution of the detention warrant, it is not the procedure to be taken by the executing agency but the procedure to be taken by the judge of the court of the lawsuit, etc. in the issuance of the detention warrant. Thus, if the court issues the detention warrant without going through the procedure in accordance with the above provision in issuing the detention warrant to the defendant, the

However, since the above provision is a provision to guarantee the procedural rights of the defendant, if it can be seen that the procedural rights prescribed in the above provision have been substantially guaranteed, such as the case where a defense counsel was already appointed to provide a vindication and evidence in the trial proceedings and a judgment was rendered under his defense, the decision to issue a warrant of detention does not necessarily mean that the decision to issue the warrant is unlawful, even if a detention warrant was issued without going through all or part of the corresponding procedure (see Supreme Court Order 85Mo12, Jul. 23, 198

However, according to the records, on July 7, 1993, the defendant was sentenced to 7 years of imprisonment with prison labor for the case of 93 Gohap174, etc. at the Seoul Criminal District Court, and was under execution of the sentence. On July 197, 1993, the defendant filed an appeal against this case, which was sentenced to 7 years of imprisonment with prison labor for the first instance court and 2 years of imprisonment with prison labor for the case of this case. The court below issued the first detention warrant of this case when the period of detention under the first detention warrant of this case expired. After the period of detention under the second detention warrant of this case expired, the court below issued the second detention warrant of this case on July 7, 200 without undergoing the procedure under Article 72 of the Criminal Procedure Act for the second detention warrant of this case before the execution of the above detention warrant of this case, and ordered the officer of the court to notify the re-appellant of detention on July 19, 200, following the second detention warrant of this case.

As above, the Re-Appellant had already been convicted of the crime of the second detention warrant of this case in the first instance and had been well aware of the summary of the crime by filing an appeal against the judgment, and the opportunity to defend the defendant was sufficiently given. The second detention warrant of this case is re-detained with regard to other criminal facts which are being jointly tried and tried by the Re-Appellants who had already been detained for separate criminal facts. Thus, even if the court below did not follow the procedure under the above provisions before issuing the second detention warrant of this case, the procedural right under the above provision has been substantially guaranteed against the Re-Appellant. Thus, even if the court below issued the second detention warrant of this case without following the procedure under Article 72 of the Criminal Procedure Act, the decision of issuance of the second detention warrant of this case is not illegal, and therefore, the grounds for reappeal as to this point cannot be accepted.

4. Article 88 of the Criminal Procedure Act provides that "When the defendant is detained, the summary of the facts charged and the counsel shall be notified immediately." This is not to affect the validity of the detention warrant by violating the provisions concerning the ex post facto hearing procedures. Thus, the argument in the grounds for reappeal that the second detention warrant of this case lost its validity by failing to comply with the above provisions is not acceptable.

5. The purport of the Re-Appellant's assertion is that there is an error of law in the first detention warrant and its extension decision of the case where the effect of the Re-Appellant has already been lost. However, this cannot be viewed as a legitimate ground for reappeal as to the decision to issue the second detention warrant of this case

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

Justices Son Ji-yol (Presiding Justice)