In a case where litigation procedures, such as detention, etc., for securing a defendant's new illness, are in violation of statutes, whether it constitutes grounds for appeal as an unlawful affecting the judgment (negative with qualification)

Articles 72 and 383 subparag. 1 of the Criminal Procedure Act

Supreme Court Decision 85Do1003 Decided July 23, 1985 (Gong1985, 1218) Supreme Court Decision 94Do129 Decided November 4, 1994 (Gong1994Ha, 3302) Supreme Court Decision 2006Do3983 Decided June 1, 2007

Defendant

Defendant

Attorney Kim Jin-tae

Seoul High Court Decision 2018No2084 decided November 8, 2018

The appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The content of the judgment is not itself, but in the case where the procedure including detention of the defendant for securing the defendant's personal illness violates the law, as long as the right to defend the defendant's defense or counsel's right is infringed essentially and it does not reach the degree that it is difficult to recognize the legitimacy of the judgment, that alone does not constitute an unlawful act that affected the conclusion of the judgment (see, e.g., Supreme Court Decisions 85Do1003, Jul. 23, 1985; 94Do129, Nov. 4, 1994).

2. According to the record, the following facts are revealed.

With respect to the instant criminal facts, the Defendant was detained on January 19, 2018 on the basis of a detention warrant issued without undergoing a prior hearing procedure as prescribed in Article 72 of the Criminal Procedure Act. However, the first instance court issued a new detention warrant to the Defendant on April 13, 2018, which recognized that there was a ground for detention through a lawful hearing procedure, in order to correct the illegality of the aforementioned detention. As can be seen, the detention of the Defendant was continued according to a new detention warrant duly issued. The Defendant had the assistance of counsel from the hearing procedure to the first instance court and the lower court to the litigation procedure.

3. Examining the above facts in light of the records, there is no illegality to deem that it is difficult to recognize the legitimacy of the judgment of the court below because the defendant’s right of defense is essentially infringed during the process of physical confinement against the defendant. Accordingly, the allegation in the grounds of appeal disputing the violation of the law regarding the issuance and enforcement of detention warrant against

4. According to Article 383 subparag. 4 of the Criminal Procedure Act, an appeal may be filed on the ground of unfair sentencing only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed. Therefore, in this case where a more minor sentence has been imposed on the Defendant, the allegation that the sentence is too unreasonable is

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

Justices Lee Dong-won (Presiding Justice)