In a case where a judgment of partial conviction and partial innocence was rendered on the facts related to concurrent crimes, and only the prosecutor appealeds on the part of innocence, the appellate court reversed the part of innocence and rendered a sentence of imprisonment, and the number of detention days prior to the judgment of the first instance, which was included in the part of separate conviction, was affirmed and measures not included

Articles 37, 38, and 57 (1) of the Criminal Act

Defendant

Defendant

Attorney Kim Yong-ro

Changwon District Court Decision 2008No1704 decided March 26, 2009

The appeal is dismissed. 70 days out of detention days after the appeal shall be included in the original sentence of the original judgment.

The grounds of appeal are examined.

1. According to the judgment of the court below and the evidence duly examined by the court below, the judgment of the court below which found the defendant guilty of fraudulent facts as to the defendant shall be justified in accordance with the reasonable free evaluation of evidence by the judge of the court of fact-finding, and there is no violation of the rules

2. Where concurrent crimes falling under Article 38 (1) 2 of the Criminal Act are concurrent crimes under the former part of Article 37 of the same Act, one punishment shall be imposed, but the above provision shall be applicable to cases where concurrent crimes are concurrent crimes, and where there exist several orders of judgment such as partial conviction, partial acquittal, imprisonment with prison labor for a part of a crime, and fines for other crimes, part of an appeal may be filed separately from other parts. The part of the judgment of the first instance which pronounced "not guilty" and the part which was not appealed by both parties may be separate from other parts. Thus, where only the prosecutor appealed against the part of the concurrent crimes, the part which found the defendant guilty becomes final and conclusive with the lapse of the appeal period, and only the part of the judgment of the defendant pending in an appellate trial becomes final and conclusive, and thus, if the defendant reverses the sentence at an appellate court, only the part of the judgment of the court concerning the remaining criminal facts before the pronouncement of detention warrant shall be reversed, considering that there are several separate sentences concerning the defendant's punishment concerning the defendant's detention warrant, 90.

According to the evidence and records duly examined by the court below, the defendant was arrested on May 13, 2008 on the charge of fraud and detained, and the prosecutor prosecuted the defendant as the charge of fraud and violation of the Electronic Financial Transactions Act, and the court of first instance convicted the defendant of violating the Electronic Financial Transactions Act and sentenced a fine of 3.5 million won, and sentenced the fine of 3.5 million won prior to the sentence of the court of first instance, including the 35 days of detention of the court of first instance in the period of detention in the workhouse, and acquitted the defendant, among the facts charged, on the charge of fraud, on the charge of not guilty part of the court of first instance. The appellate court reversed the acquittal part of the court of

In light of the aforementioned legal principles and facts, the detention days prior to the pronouncement of the judgment of the court of first instance was included in the period of detention in the workhouse, and the part of the judgment of conviction which was not appealed by the defendant and the prosecutor became separate and conclusive, and only the part of the judgment of acquittal shall be reversed in the appellate court. Thus, the court below's decision that did not include the number of detention days prior to the pronouncement of the judgment of the court of first instance in the imprisonment with prison labor upon the reversal of the judgment of

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

Justices Park Si-hwan (Presiding Justice)