[1] In a case where a defendant filed an appeal and withdraws such appeal, whether "the whole number of detention days until the withdrawal of an appeal after filing an appeal" should be included in the original sentence (affirmative)

[2] The case affirming the judgment of the court below that the prosecutor's order of execution of punishment that did not include "the number of days of pre-trial detention from the time of appeal to the time of withdrawal of appeal" in the principal sentence should be unlawful and "the whole amount" should be included in the principal sentence

[1] Article 482(1) of the Criminal Procedure Act or Article 57 of the Criminal Act cannot be applied in that the defendant filed an appeal and voluntarily withdraws the appeal, and Article 482(2) of the Criminal Procedure Act cannot be applied in that the number of days of detention before the appeal is not the number of days of detention during the period of appeal. However, there is no reason to treat “the number of days of detention before the final judgment during the period of appeal” separately from “the number of days of detention before the final judgment during the period of appeal” in that “the number of days of appeal after the appeal is withdrawn,” and therefore, it is reasonable to deem that Article 482(2) of the Criminal Procedure Act should apply mutatis mutandis to “the total number of days of detention” as to “the number of days of detention before the final judgment during the period of appeal is withdrawn.”

[2] The case affirming the court below's order that the prosecutor's disposition of ordering the execution of sentence, which did not include "the number of days of pre-trial detention from the period of appeal to the date of withdrawal of appeal," in the principal sentence, should be unlawful and should be included in the total number of days of pre

[1] Article 57 of the Criminal Act; Article 482 (1) and (2) of the Criminal Procedure Act / [2] Article 57 of the Criminal Act; Article 482 (1) and (2) of the Criminal Procedure Act

[1] Supreme Court en banc Order 2007Mo522 Decided August 10, 2007 (Gong2007Ha, 1490) en banc Order 2007HunBa25 Decided June 25, 2009 (HunGong153, 1244) (HunGong153, 1244) en banc Order 2008HunGa13, 2009Hun-Ga55 Decided December 29 (HunGong159, 29)

Claimant

Prosecutor

Cheongju District Court Order 2010Ro2 dated January 26, 2010

The reappeal is dismissed.

The grounds of reappeal are examined.

Article 482(1) of the Criminal Procedure Act provides, “The number of detention days before a judgment was rendered after an appeal is filed shall be included in the original sentence in the following cases.” Article 482(1) provides, “When a prosecutor files an appeal on January 1, 200; when an appeal is filed by a defendant or a person other than the defendant, the original judgment is reversed” and Article 482(2) provides, “The number of detention days before the judgment becomes final and conclusive during the period for filing an appeal (excluding the number of detention days after an appeal is filed) shall be included in the original sentence.” Meanwhile, Article 57(1) of the Criminal Act provides, “The number of detention days before the judgment is made shall be included in the imprisonment, imprisonment without prison labor, imprisonment without prison labor, fine or minor fine, or detention.” However, the Constitutional Court Decision 2007Hun-Ga25 Decided June 25, 2009 declared that the entire number of detention days before the judgment should be included in the original sentence or the entire period of detention under the principle of human rights protection and equity.”

However, Article 482(1) of the Criminal Procedure Act or Article 57 of the Criminal Act cannot be applied in that the defendant filed an appeal and withdraws the appeal, and Article 482(2) of the Criminal Procedure Act cannot be applied in that the number of days of detention during the period of the appeal before the appeal is not the number of days of detention during the period of the appeal, and there is no provision regulating it directly. However, in that the detention after the appeal is lodged and the withdrawal of the appeal is deprived of the defendant's personal liberty, it is not substantially different from the execution of imprisonment. Therefore, there is no reason to treat the defendant separately from the execution of the sentence before the final judgment during the period of the appeal, and therefore, it is reasonable to view that Article 482(2) of the Criminal Procedure Act should be applied by analogy to the number of days of detention during the period of the appeal after the appeal

The Supreme Court Order 2007Mo522 Decided August 10, 2007 cited in the grounds for re-appeal decided to the effect that it is different. However, this is premised on the premise that part of the number of days under detention prior to the adjudication may not be included in the original sentence before the Constitutional Court rendered a decision of unconstitutionality as to Article 57(1) of the Criminal Act. As such, the Constitutional Court’s decision of unconstitutionality as to the above case becomes null and void due to the said decision of unconstitutionality.

In the same purport, the court below is just in maintaining the first instance court's decision that the prosecutor's disposition of ordering the execution of the sentence of this case, which decided that the number of days of pre-trial detention should not be included in the principal sentence from the defendant's appeal period to the withdrawal of appeal, should be included in the principal sentence, and there is no error of law such as misunderstanding legal principles

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)