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)

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

Supreme Court Decision 2004Do908 Delivered on July 9, 2004

Defendant

Defendant

Attorney Park Young-chul

Gwangju District Court Decision 2007No329 Decided March 21, 2007

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

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)