In a case where the court sentenced that the number of days of detention in the court shall be less than the number of days of detention in the court, as provided in Article 515 of the Military Court Act, whether the inclusion in the court is excluded.

A. In a case where the number of days of pre-trial detention is calculated by law in accordance with Article 515 of the former Military Court Act (amended by Act No. 2539, Feb. 17, 73), even if the court below sentenced the judgment that the number of days of pre-trial detention should be calculated by mistake, the court below does not exclude the statutory inclusion due to such error.

B. In a case where an appeal is dismissed, it is necessary to review and determine the propriety of the judgment of the first instance for the reasons for appeal submitted by the appellant. Therefore, it is not necessary to specify the facts constituting an offense, summary of evidence and the application of law in dismissing the appeal by the defendant.

Article 515 of the Military Court Act

63Do95 delivered on May 15, 1963

Defendant 1 and three others

Attorney Jeong-Gyeong et al.

The Army, High Military Court Decision 68 High Military Port7 and 9 delivered on May 29, 1968

The Defendants’ respective appeals are dismissed, respectively.

The 50-day period of detention pending trial after the appeal shall be included in the principal sentence.

(1) (1) We examine the grounds of appeal by Defendant Yang Ho-ho;

The gist of the first point is that there is an error of law in recognizing the embezzlement of occupational military supplies, preparation of false official documents, and establishment of facts constituting the crime for which the court below maintained against the defendant in the first instance court's judgment 1-2 and 1-3 (a) through (h), although there is no entry of facts constituting the crime of the defendant's second point in the indictment as of August 31, 1967, and the second point is that the court below's decision that there is no error of law in the judgment of the court of first instance which recognized the facts constituting the crime like the theory of lawsuit, since it is clear that the defendant was indicted as a common principal offender for each crime such as the theory of lawsuit, and that the second point is an error in the application of Article 1 of the law in the judgment of the court of first instance, which is the purport that there is an error in the application of the law in the judgment of the court of first instance. Thus, since the so-called theory as to the lawsuit and several legal principles as to the merger are not applied as a concurrent crime.

(2) We examine the Defendant’s grounds of appeal on the attorney Park Jong-sung;

The gist of Article 515 of the Military Court Act is that the judgment of the court of first instance is unlawful if the number of days under detention without prison labor is included in the court's order, which is less than the number of days that will be included in the court's delivery. Thus, even if the court below sentenced the same judgment as the theory of lawsuit in the court's order due to mistake, it is nothing more than a legally meaningful measure and it does not exclude legal delivery, so such measure cannot be viewed as an infringement on the fundamental rights of the defendant. Thus, the gist of the second point is that the court below's judgment contains no error of law or inconsistency with the reasoning in the original judgment. Thus, if the court below rejected an appeal, the court below erred in the misapprehension of legal principles as to the defendant's appeal, and it did not err in the misapprehension of legal principles as to facts constituting an offense and evidence, and it cannot be found that the court below erred in the misapprehension of legal principles as to the prosecutor's appeal, and it cannot be found that the court below erred in the misapprehension of evidence and evidence newly established in the first instance judgment.

(2) We examine each of the grounds of appeal by Defendant Jong-ro and his defense counsel;

In addition, there is an error in the misapprehension of legal principles and application of law with regard to the preparation of evidence in the original judgment, and there is no error in the misapprehension of legal principles with regard to the establishment of facts against the defendant's order in Paragraph (3) of the original judgment, and even if there is no illegality in the establishment of facts and application of law, the determination of punishment by the original court is excessive. In addition, it cannot be said that there is an error in the preparation of evidence, such as theory of lawsuit, if examining each evidence of the first instance court that admitted by the original court as evidence to recognize the facts of this case by the records, and there is no error in the law in recognizing the crime as a common principal of the crime, in particular, since there is no duty to obey an order of superior even if a soldier does not have a duty to obey an illegal order of superior, it cannot be said that there is an error in the misapprehension of legal principles with regard to the original judgment, and there is no error in the misapprehension of legal principles with regard to the employment of the defendant from among the indictment on June 30, 1967.

(3) We examine each of the grounds of appeal by Defendant Kim Young-young and his defense counsel;

The gist of the decision is that the punishment of the court of first instance is excessive even if there is no illegality in mistake of facts in the original judgment or in application of law, as well as in the family affairs, and even if there is no illegality in law and application of law, the decision of the court of first instance is excessive. If the evidence at the time of the court of first instance maintained by the court of first instance is examined by the records, there is no error of law in the decision of the court of first instance which recognized the criminal facts in the original judgment, and it cannot be said that there is no illegality in the decision of the court of first instance as well as in the decision of the court of first instance which recognized the criminal facts in the original judgment, and in the case where the defendant was sentenced to a punishment of one-year imprisonment,

(4) We examine each of the grounds of appeal by Defendant Young-gu and his defense counsel;

The summary is that the original judgment contains an error of law in misunderstanding evidence, misunderstanding of facts, and legal application. If the evidence at the time of the first instance judgment maintained by the original judgment is examined based on records, it cannot be deemed that there was an error in the preparation of evidence such as theory of lawsuit, and there is no error in the law in recognizing the criminal facts as above, and the circumstances mentioned in the theory of lawsuit are reasons after the establishment of crime, which cannot affect the establishment of crime. Therefore, it cannot be said that there was a mistake of facts in the application of the theory of lawsuit or the application of the law by recognizing and recognizing the criminal facts in this case, and it cannot be said that there was a mistake of facts in the case where the defendant was sentenced to a punishment of one-year imprisonment, and that there was a mistake of facts in the case where the defendant was sentenced to a punishment of one-year imprisonment, no legitimate ground for appeal can be raised

Therefore, the Defendants’ final appeal is groundless, and it is so decided as per Disposition by the assent of all participating Justices.

Supreme Court Judge Lee Young-subop (Presiding Judge)