[1] Whether pre-trial detention equivalent to the number of detention days included in the principal sentence is exempt from criminal compensation where a suspended sentence of imprisonment is imposed (affirmative)

[2] In a case where the claimant was indicted for concurrent crimes under the arrest and detention of a person suspected of violating the Act on the Protection of Children and Juveniles against Sexual Abuse and appealed after having been convicted of all the charges, and where the appellate court rendered a judgment of not guilty of part of the charges and a suspended sentence of imprisonment became final and conclusive, the case holding that the State limits the amount of compensation to be paid by the State within the limit of 10% of the total amount

[1] Detention days before a sentence is rendered shall be included in imprisonment, imprisonment without prison labor, or imprisonment with or without prison labor (excluding the invalidated portion by the Constitutional Court en banc Order 2007Hun-Ba25, Jun. 25, 2009; 2007Hun-Ba25, Jun. 25, 2009); where a suspended sentence is sentenced, the entire suspended sentence shall be included in the suspended sentence; and pre-trial detention equivalent to the detention days included in the principal sentence shall be excluded from criminal compensation.

[2] The case holding that in a case where the claimant was indicted for concurrent crimes under the suspicion of violating the Act on the Protection of Children and Juveniles against Sexual Abuse and appealed from the first instance trial after being released as bail, and the judgment became final and conclusive after being sentenced to a suspended sentence of imprisonment for part of the facts charged, the court below held that it is reasonable to limit the claimant's criminal compensation by taking into account all the circumstances revealed in the entire criminal procedure until the period of pre-trial detention, grounds for detention and necessity of detention, and the judgment of acquittal became final and conclusive, in light of the whole criminal procedure, it is difficult to view that there are special circumstances to the extent that the whole amount of the pre-trial detention should be restricted, and it is reasonable to limit the amount of compensation for the claimant to the extent that the whole amount of the compensation should be restricted by the State

[1] Article 57(1) of the Criminal Act / [2] Article 57(1) of the Criminal Act; Articles 4 subparag. 3 and 5(1) and (2) of the Criminal Compensation and Restoration of Honor Act; Article 2 of the Enforcement Decree of the Criminal Compensation and Restoration of Honor Act; Article 8(2) of the Criminal Procedure Costs Act; Article 6(1) and (2) of the Rules on Criminal Procedure Costs; Article 14(1) of the Rules on Criminal Procedure Costs, Article 194-2(2)2 of the Criminal Procedure Act

[1] Constitutional Court en banc Order 2007HunBa25 Decided June 25, 2009 (HunGong153, 1244)

Claimant (Law Firm Name, Attorney Min Gyeong-chul, Counsel for plaintiff-appellant)

Seoul High Court Decision 2011No587 decided December 8, 2011

Criminal compensation of KRW 1,350,00 shall be paid to an appellant for 6,807,816, and criminal compensation of expenses.

1. Facts of recognition;

According to the records, the following facts are recognized.

(a) Detention of the claimant;

On September 24, 2010, the claimant was arrested by a warrant of arrest on the charge of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape, etc.). On September 28, 2010, the claimant was detained on the charge of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape, etc.) and violation of the Act on the Protection of Children and Juveniles against Sexual Abuse ( sex purchase, etc.).

(b) Judgment of an appellant and pre-trial detention;

(1) On October 20, 2010, the claimant was indicted of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape, etc.) (hereinafter “instant charges”), violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (hereinafter “ second charges”), and violation of the Act on the Punishment of Acts, including the Act on the Punishment of Commercial Sex Acts (hereinafter “instant charges”). After the first trial date, the claimant led to the confession of only the first charges and the remainder of the charges. On February 11, 2011, the applicant was sentenced to the Incheon District Court (2010Gohap681) to attach an electronic tracking device for three years and five years with respect to the whole of the instant charges. Meanwhile, on January 11, 2011, the claimant was released as the suspension of detention, and the period has expired.

(2) A petitioner and a prosecutor appealed to the first instance judgment, and the petitioner was released on bail on July 13, 201, while being tried by this court (201No587). The court (201No587) reversed all the judgment of the lower court on December 8, 2011, and rendered a judgment on the petitioner’s violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape, etc.), not guilty of the charge of violating the Act on the Punishment of Acts of Arranging Sexual Traffic (Sexual Trade) and the Act on the Protection of Children and Juveniles against Sexual Abuse ( sex Purchase, etc.) with respect to the crime of violating the Act on the Protection of Children and Juveniles against Sexual Abuse.

(3) The prosecutor appealed to the above appellate judgment and appealed, but the Supreme Court (201Do17622) dismissed the prosecutor’s appeal on April 26, 2012 and the above appellate judgment became final and conclusive. The number of days detained in the situation of the appellant before the judgment becomes final and conclusive is 290 days (including the number of days under detention from September 24, 2010 to July 13, 201, 3 days excluding the period of suspension of detention from September 24, 2010 to July 13, 201, and the date of release from the period of suspension of detention from the date of release to the date of detention).

(c) Appointment of counsel;

The claimant appointed the fixed intervention of the lawyer in the trial procedure of the first instance court, and appointed the law firm Round as each private defense counsel in the trial procedure of the appellate court.

2. Determination

A. The claimant's assertion

The claimant asserts that, in the above criminal procedure, the judgment of not guilty was finalized, and the judgment was detained for 288 days in total before the final judgment became final and conclusive, and since criminal compensation related to the trial was paid to the counsel, the State is entitled to 47,347,200 won under the Criminal Compensation and Restoration of Honor Act (the amount calculated on the premise that the daily minimum wage amount of 32,880 won under the Minimum Wage Act is 164,40 won from September 24, 201 to July 13, 201) and criminal compensation related to the expenses under the Criminal Procedure Act, each of the amount of 5,000,000 won for the defense counsel fees of the first instance court under the Criminal Procedure Act.

B. The occurrence of criminal compensation claim

(1) Criminal compensation concerning detention

The number of detention days prior to the imposition of a sentence shall be included in the detention or confinement of imprisonment, limited imprisonment without prison labor, fine or minor fine (excluding the invalidated part by the Constitutional Court en banc Decision 2007Hun-Ba25 Decided June 25, 2009, en banc Decision 2007Hun-Ba25 Decided June 25, 2009), and where a suspended sentence is sentenced, the whole of the suspended sentence shall be included in the limited imprisonment, and the number of detention days equivalent to the number of detention days included in the principal sentence

In this case, the claimant was not guilty of the facts charged in the first instance, and was sentenced to a sentence of two-year suspended sentence to imprisonment with prison labor for the second and third facts charged, and the judgment became final and conclusive. As such, the 244 days (the number of days corresponding to the punishment for August calculated based on the date the judgment became final and conclusive) out of the 290 days of the appeal shall be included in imprisonment with prison labor for the above eight months ( even if the claimant was arrested as the facts charged in the first instance, as long as the remaining facts charged as the defendant was convicted of being tried together with the remaining facts charged,

Therefore, the claimant has the right to claim criminal compensation against the country for 46 days (290 - 244).

(2) Criminal compensation for expenses

According to the above facts, the claimant has the right to claim the State for compensation for the expenses incurred in the above trial within the scope prescribed by the relevant statutes.

(3) Limitation on criminal compensation

In criminal compensation for detention, the court may dismiss, at its discretion, all or part of the claim for compensation (Article 4 subparag. 3 of the Criminal Compensation Act). Even in criminal compensation for expenses, the court may choose not to compensate all or part of the expenses “where a judgment of innocence on part of concurrent crimes has become final and conclusive by one trial and a judgment of conviction has become final and conclusive on the other part” (Article 194-2(2)2 of the Criminal Procedure Act).

In this case, the claimant asserts only the facts charged in the first trial after the first trial date of the first trial and makes a confession of the remaining facts charged in the second and third trials, which focuses on whether the defendant was guilty or not, and in the first trial, the main sentence of the first trial was sentenced to imprisonment with prison labor for three years and six months for the whole facts charged, while in the court of first instance, the court of appeal rendered a suspended sentence of two years for the remainder of the facts charged except for the facts charged in the first trial, the number of days pending trial of the claimant reaches 290 days, the grounds for detention of the facts suspected of suspicion, the necessity of detention of the claimant, and other various circumstances revealed in the entire criminal proceedings until the final judgment of the verdict of innocence was affirmed, it is difficult to view that there are special circumstances to the extent that the whole criminal compensation for the claimant is restricted. However, in calculating the amount of compensation to be paid by the State, it is reasonable to limit the amount by taking into account the above circumstances within 10%

C. Scope of criminal compensation

(1) Compensation for detention

Article 5(1) of the Criminal Compensation Act and Article 2 of the Enforcement Decree of the same Act provide that the limit of compensation for detention under Article 5(1) of the same Act shall be five times the minimum daily wage under the Minimum Wage Act of the year in which the ground for claim for compensation by day occurred. The minimum daily wage under the Minimum Wage Act of 2012 at the time when the ground for the claim for compensation by this case (determination of acquittal judgment) occurred is 36,640 won, and the maximum amount is 183,200 won per day (=36,640 won x 5 times). Considering all the circumstances of Article 5(2) of the Criminal Compensation Act, it is reasonable to calculate compensation for detention pending trial by the claimant as 164,40 won per day on 46 days recognized above.

Therefore, the sum of the amount to be compensated by the State for detention of the petitioner is 6,807,816 (=164,440 x 46 days x 0.9).

(2) Cost reimbursement

Article 8(2) of the Criminal Procedure Costs Act provides that "the criteria and amount of remuneration to be paid to the public defender shall be determined by the court within the extent prescribed by the Supreme Court Regulations," Article 6(1) of the Rules on Criminal Procedure Costs, etc. provides that "the remuneration to the public defender shall be determined by the Supreme Court Justices' Council within the limits of annual budget," and Article 6(2) of the Rules provides that "the remuneration to the public defender may be increased by the relevant judge within the limits of budget, taking into account the difficulty of the case, the contents of the duties performed by the public defender, the time spent for the handling of the case, etc." Article 14(1) of the Rules on Public defenders provides that "the presiding judge may increase the remuneration to the public defenders within the limits of five times the amount of remuneration determined by the Supreme Court Justices' Council every year, in consideration of the difficulty of the case, the contents of the duties performed by the public defender, the time spent for the handling of the case, etc."

Accordingly, in light of the claimant's actual expenses paid to the counsel of the first instance trial, the fact that the counsel of the first instance court attended all the court on the fourth trial day excluding the sentencing day, the fact that most of the arguments were made with respect to the evidence of innocence in the facts charged of the first instance, the fact that the claimant's ordinary relation was made, the time and effort required for the difficulty of the case and the handling thereof, and the criteria for the increase in the remuneration prescribed by the established rules on the public defender, etc., the amount of attorney's fees to be paid by the State as compensation for the claimant is reasonable to the extent that the above basic remuneration is increased by 1,350,000 won (=30,000 x x 0.9) to the extent that the amount of attorney's fees to be paid by the State is increased by 5 times the above basic remuneration. Thus,

3. Conclusion

Therefore, the State is obligated to pay the petitioner KRW 6,807,816 to criminal compensation for confinement, and KRW 1,350,000 to criminal compensation for expenses. It is so decided as per Disposition.

Judges Kim Dong-ok (Presiding Judge)