Method of counting the number of detention days before judgment is rendered;

Detention days before sentencing a judgment in accordance with the provisions of Article 57 of the Criminal Act shall be included in the imprisonment, imprisonment without prison labor, imprisonment without prison labor, or imprisonment with or without prison labor, or detention, except where so-called statutory inclusion is made in accordance with the provisions of Article 482 of the Criminal Procedure Act.

Article 57 of the Criminal Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jae-young and 1 other, Counsel for plaintiff-appellant)

Defendant 1 and two others

Defendant 1

Attorney Yang Hong-hoon (for the defendant)

Busan High Court Decision 95No82 delivered on June 22, 1995

Of the judgment of the court below and the judgment of the court of first instance, the part concerning Defendant 2 shall be reversed.

Defendant 2 shall be punished by imprisonment with prison labor for one year.

Five days from the detention days before a judgment of the court of first instance is rendered shall be included in the above sentence.

However, the execution of the above punishment shall be suspended for two years from the date the judgment becomes final and conclusive.

All appeals by Defendant 1 and 3 are dismissed.

The number of detention days after an appeal shall be included in the principal sentence of the crime under subparagraph 1(b) through (f) of the first instance judgment against Defendant 1.

1. Defendant 1 and 3 and his defense counsel’s grounds of appeal are also examined.

In light of the records, we affirm the measures of the court below that recognized all criminal facts of each of the defendants' decisions, and there is no error of violation of the rules of evidence, such as recognizing facts without evidence or using testimony of witnesses without credibility as evidence, and there is no error of law that affected the conclusion of the judgment due to misapprehension of the legal principles as to fraud. Supreme Court Decision 74Do996 Decided September 10, 1974, which points out the theory of lawsuit, is different from the crime of fraud of this case, and thus cannot be invoked in this case. All arguments are without merit.

2. Defendant 2’s ground of appeal is examined.

In light of the records, we affirm the measures of the court below that recognized all criminal facts, such as the preparation of false official documents and the uttering of false official documents, and there is no error of law that affected the conclusion of the judgment by falsely recognizing the contents of the official document as false as stated in the theory of lawsuit, and in this case where a sentence of two years of suspended execution is imposed for one year of imprisonment, the argument that the sentencing of the court below is excessive shall not be a legitimate ground for appeal. All arguments are without merit.

However, under Article 57 of the Criminal Act, the number of detention days before a judgment is made shall be counted in the confinement or detention of limited imprisonment, limited imprisonment, limited imprisonment without prison labor, fine or minor fine without prison labor, except where the so-called statutory mountain is made pursuant to Article 482 of the Criminal Procedure Act (see, e.g., Supreme Court Decision 4292Du322, Oct. 23, 1959; Supreme Court Decision 79Do443, Nov. 13, 1979; Supreme Court Decision 94Do1354, Jul. 29, 1994; Supreme Court Decision 94Do1354, Jul. 29, 1994). According to the records, the judgment of the court of first instance maintains the judgment of the court of first instance that did not include the number of detention days before the judgment is made after examining the appeal case against the defendant 2, and the remaining part of the judgment of the court of first instance and that of the judgment of the court below is reversed.

3. Therefore, all appeals by Defendants 1 and 3 are dismissed, and 60 days of detention days after the final appeal shall be included in the principal sentence of the crime committed by Defendant 1. Since the above part against Defendant 2 is deemed sufficient to be directly decided by Article 396 of the Criminal Procedure Act, the first instance court and the judgment of the court of first instance shall be reversed and the judgment shall be rendered directly as follows.

The criminal facts and the summary of the evidence against Defendant 2 recognized by the trial court are the same as the judgment of the court of first instance, and thus, they are quoted in accordance with Articles 399 and 369 of the Criminal Procedure Act.

Article 227 of the Criminal Act as to the preparation of a false official document among the so-called judgments by Defendant 2, and Articles 229 and 227 of the Criminal Act as to the exercise of a false official document. Since each of the above crimes is concurrent crimes under the former part of Article 37 of the Criminal Act, each of the above crimes is a concurrent crime under Articles 38 (1) and 50 of the Criminal Act, the same defendant shall be punished by imprisonment with prison labor for one year within the scope of aggravated punishment for concurrent crimes against preparation of a false official document, and there are grounds for considering the circumstances. Thus, the execution of the above punishment shall be suspended for two years from the date when the judgment becomes final and conclusive under Article 62 (1) of the Criminal Act, and five days from the number of detention days before the sentence of the first instance judgment is included in the above imprisonment.

4. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Chang-tae (Presiding Justice)