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(영문) 대법원 2007. 5. 10. 선고 2007도2517 판결
[사기·공무집행방해·폭력행위등처벌에관한법률위반(야간·공동손괴)(인정된죄명:손괴)·도로교통법위반(음주운전)][미간행]
Main Issues

Whether the period of detention in a workhouse shall be deemed the period of detention in the workhouse and shall be included in the principal sentence (negative)

[Reference Provisions]

Article 57 of the Criminal Act, Article 492 of the Criminal Procedure Act

Reference Cases

Supreme Court Decision 2004Do908 Delivered on July 9, 2004

Escopics

Defendant

upper and high-ranking persons

Defendant

Defense Counsel

Attorney Park Young-chul

Judgment of the lower court

Gwangju District Court Decision 2007No329 Decided March 21, 2007

Text

The appeal shall be dismissed. 50 days of detention days after the appeal shall be included in the original sentence as follows: The number of days remaining after subtracting the number of detention days before the court of first instance and the court below rendered the judgment included in the above imprisonment from the term of imprisonment in the judgment of the court of first instance, among the number of detention days for 50 days, shall be included in the above imprisonment, and the remaining number of detention days shall be included

Reasons

The grounds of appeal are examined.

The period of application for formal trial is to keep the defendant in a workhouse by a summary order with the lapse of the period of application for formal trial. Thus, the period of detention does not constitute the number of days of pre-trial detention as stipulated in Article 57 of the Criminal Act (see Supreme Court Decision 2004Do908, Jul. 9, 2004). Therefore, even in a case where a case is deliberated by a trial according to a decision on recovery of claim for formal trial, the court does not regard the period of detention as the number of days of pre-trial detention and it cannot be included in the principal sentence. The period of detention is only considered to have been executed later at the execution stage

In this regard, the court below is just in taking measures that the defendant did not include the period of detention in the detention days prior to the decision to recover the right to request formal trial and suspend the execution of punishment, and there is no error in the misapprehension of legal principles as to the inclusion of detention days prior to the

Therefore, the appeal shall be dismissed, and the number of days of detention after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Young-ran (Presiding Justice)

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심급 사건
- 광주지방법원 2007.3.21.선고 2007노329

참조판례

- 대법원 2004. 7. 9. 선고 2004도908 판결

참조조문

- 형법 제57조 (위헌조문)

- 형사소송법 제492조

본문참조판례

대법원 2004. 7. 9. 선고 2004도908 판결

본문참조조문

- 형법 제57조

원심판결

- 광주지법 2007. 3. 21. 선고 2007노329 판결