The meaning of "when there is an error in the application of Acts and subordinate statutes" under subparagraph 1 of Article 372 of the Criminal Procedure Act.

Article 372 of the Criminal Procedure Act provides that "When there is an error in the application of the law" means the case where the court of first instance makes a mistake in the application of the law on the premise that the facts recognized by the court of first instance are dealt with.

Article 372 subparag. 1 of the Criminal Procedure Act

Supreme Court Decision 81Do211 Decided September 22, 1981

Defendant

Defendant

Chuncheon District Court Decision 87 High Court Decision 289 delivered on December 30, 1987

The summary height is dismissed.

The 30 days under confinement after an infertility shall be included in the original sentence.

We examine the defendant's brief reasons for dismissal.

1. The summary appeal can be filed only when the facts recognized by the judgment of the court of first instance are not applicable, when there is an error in the application of the law, or when there is a abolition, alteration, or amnesty after the judgment of the court of first instance was rendered (see Article 372 of the Criminal Procedure Act). The term "when there is an error in the application of the law" refers to the case where the court of first instance erred in the application of the law on the premise that the facts recognized by the judgment of the court of first instance are satisfied.

In this paper, although the crime of this case was committed before and after the final judgment constitutes a single comprehensive crime of habitual fraud, it is illegal that the judgment of the court below erred in the determination of habitual fraud and thereby convicted the crime of this case without dismissal or dismissal of prosecution. However, this is ultimately attributable to the erroneous fact-finding of the court below's habitualness and the misapprehension of the legal principles that led to a mistake in the application of the law. Thus, such a reason is not a brief ground for appeal under the above provision of the law.

2. In addition, although the crime of this case is not a repeated crime, the court below erred by emphasizing repeated crimes. However, according to the records, the defendant, as recognized by the court below, was sentenced to 10 months of imprisonment for a crime of fraud on December 23, 1983 and was released from prison around March 5, 1984. Thus, the court below's action that committed the crime of this case around September 20, 1985 and around October 15 of the same year is just and there is no error in the misapprehension of the legal principle.

In addition, although the judgment of the court below is erroneous in applying the latter part of Article 37 of the Criminal Act to concurrent crimes, the records show that the defendant was sentenced to imprisonment with prison labor for one year and six months in the government support on May 2, 1986 and the above judgment became final and conclusive around that time. Thus, the court below's disposition that applied the latter part of Article 37 of the Criminal Act to the crime of this case is just, and there is no error in the law.

3. Therefore, the non-permanent appeal in this case is dismissed, and part of the number of detention days after the non-permanent appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Jae-hee (Presiding Justice)