[1] In accordance with the Constitutional Court's decision of unconstitutionality as to the part of Article 57 (1) of the Criminal Code, whether it is unnecessary to separately determine "matters concerning inclusion of days of pre-trial detention before sentencing" in the judgment (affirmative)

[2] The legal effect of "Sentencing Criteria" established by the Supreme Court Sentencing Committee

[3] The case holding that the principle of prohibition of retroactive application is not violated in a case where the punishment was determined by referring to the above "Sentencing Criteria" for a crime against which a public prosecution was instituted before the sentencing guidelines set by the Supreme Court's sentencing committee came into effect

[1] Article 57 (1) of the Criminal Code provides that "or part of the case" has become null and void by the Constitutional Court Decision 2007HunBa25 Decided June 25, 2009. Thus, since the whole number of days of pre-trial detention is naturally included in the principal sentence in law, it is not necessary to separately determine matters concerning the inclusion of days of pre-trial detention in the judgment.

[2] The sentencing guidelines set up by the Sentencing Committee of the Supreme Court pursuant to Article 81-2 of the Court Organization Act are prepared as specific and objective criteria in order to refer to the determination of rational sentencing by judges (see Article 81-6 (1) of the same Act). The above sentencing guidelines do not have legal binding power (the proviso of Article 81-7 (1) of the same Act). The above purport is prepared to the same effect, and it is expected that they have general persuasive power by the validity of the contents. Therefore, the respect for the sentencing of judges is required.

[3] In a case where a sentence was determined by referring to the above "Sentencing Criteria" in relation to a crime against which a public prosecution was instituted before the sentencing guidelines set by the Supreme Court sentencing Committee came into effect, the case holding that there was no error of law applying laws unfavorable to the defendant retroactively

[1] Article 57 (1) of the Criminal Code / [2] Articles 81-6 (1) and 81-7 (1) of the Court Organization Act / [3] Article 1 (1) of the Criminal Code, Articles 81-6 (1) and 81-7 (1) of the Court Organization Act

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

Defendant

Defendant

Attorney Kim Dong-dong

Gwangju High Court Decision 2009No133 Decided October 9, 2009

The appeal is dismissed.

The grounds of appeal are examined.

1. Article 57(1) of the Criminal Act provides that “or part of the case” has become null and void by the Constitutional Court Decision 2007HunBa25 Decided June 25, 2009. Thus, since the whole number of days of pre-trial detention is naturally included in the principal sentence as a matter of law, it is not necessary to separately determine matters concerning the inclusion of days of pre-trial detention in the judgment.

On a different premise, the ground of appeal that the court below’s failure to enter matters concerning pre-trial detention in the judgment is unlawful is without merit.

2. In light of Article 383 Subparag. 4 of the Criminal Procedure Act, an appeal may not be filed on the ground that the amount of punishment is unreasonable unless the court below rendered death penalty or imprisonment with or without prison labor for an indefinite term or for not less than ten years. Therefore, in this case where a sentence of imprisonment with prison labor for less than 10 years was rendered against the defendant, the assertion that such punishment is too heavy or that there is a distortion of fact about the sentencing is not a legitimate ground for appeal

In addition, the sentencing guidelines set up by the Sentencing Committee of the Supreme Court pursuant to Article 81-2 of the Court Organization Act are prepared as specific and objective criteria that can be referred to judges in determining rational sentencing (see Article 81-6 (1) of the same Act). The above sentencing guidelines do not have legal binding power (see the proviso of Article 81-7 (1) of the same Act), and merely have general persuasive power based on the validity of the contents as above, and thus, the respect for the sentencing of judges is required only in the sentencing of judges. Thus, it is not limited to materials that can be referred to by judges in the determination of punishment. Thus, the court below, on the ground that the above sentencing guidelines are considered as reference materials in determining punishment for the crime of this case brought to the court before the above sentencing guidelines came into force, and there is no violation of law that retroactively applies the law unfavorable to the defendant, as argued in the Grounds for Appeal.

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

Justices Kim Ji-hyung (Presiding Justice)