It is unlawful that the appellate court's decision to dismiss the defendant's appeal against the defendant who has been detained before the prosecution was not included in the detention days before the judgment of the appellate court was rendered.

Despite the fact that the appellate court rendered a judgment dismissing the defendant's appeal against the defendant who has been detained prior to the prosecution, the whole or part of the detention days prior to the pronouncement of the appellate court under Article 57 of the Criminal Act should be included in the original sentence, it is unlawful to not include the detention days at all.

Article 57 of the Criminal Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Defendant

Defendant

Attorney Full Use and Award

Chuncheon District Court Decision 2006No368 Decided January 18, 2007

The judgment of the court below is reversed. The defendant's appeal is dismissed. 85 days out of the number of days of confinement before the judgment of the court below is included.

1. The grounds of appeal are examined.

In this case where a sentence of imprisonment with labor for more than ten years is imposed against the defendant, the argument that the court below’s punishment is heavier is not a legitimate ground for appeal.

2. Ex officio determination

A. It is clear that the defendant has been detained ex officio prior to the prosecution of this case. Since the court below dismissed the appeal in the case where only the defendant appealed, the court below should include all or part of the detention days prior to the pronouncement of the court below in the original sentence pursuant to Article 57 of the Criminal Act, but the above detention days should not be included in the original sentence. Thus, the court below's judgment is erroneous in the application of the law, and it is clear that such illegality has affected the conclusion of the judgment, and therefore, the judgment of the court below cannot avoid reversal.

B. Therefore, a decision is rendered in accordance with Article 396 of the Criminal Procedure Act on this case directly.

Since the sentencing of the first instance is inappropriate even if the defendant's grounds for appeal are considered in light of all the conditions of sentencing based on the records, it is not reasonable to discuss the grounds for appeal.

Therefore, Defendant’s appeal is dismissed on the grounds that it is without merit, and part of the number of days of detention in the court below prior to the pronouncement of the judgment below is included in the principal sentence pursuant to Article 57 of the Criminal Act. It is so decided as per Disposition

Justices Kim Nung-hwan (Presiding Justice)