Whether the appellate court imposed the principal sentence in the same manner as the judgment of the first instance, and if the number of days pending trial is sentenced to the reduction of the number of days pending trial than the judgment of the first instance

In a case where only the defendant appealed an appeal, even if the number of days pending trial in the first instance was erroneous, the appellate court cannot render a judgment disadvantageous to the defendant. Thus, the appellate court’s revocation of the first instance judgment and the principal sentence is the same as the judgment in the first instance, and it is unlawful to render a judgment that only the number of days pending the judgment in the first instance is reduced to the number of days

Article 368 of the Criminal Procedure Act, Article 57 of the Criminal Act

Supreme Court Decision 66Do1500 Decided December 27, 1966 (No. 14-3, 91) Supreme Court Decision 93Do2563 Decided February 8, 1994 (Gong194Sang, 1041)

Defendant

Defendant

Attorney Lee Dong-soo

Suwon District Court Decision 95No1071 delivered on September 26, 1995

The judgment below is reversed. The number of detention days before filing an appeal shall be included 118 days in the principal sentence of the judgment of the first instance after filing an appeal.

The defendant's grounds of appeal are examined.

According to the evidence admitted by the court of first instance as cited by the court below, the defendant was not in a state of mental disorder or mental disorder above the spirit at the time of stopping each of the crimes in this case, and it can be recognized that the defendant was not in a state of mental disorder or mental disorder due to drinking at the time of committing each of the crimes in this case 1, 2, and 3. Therefore, there is no reason to discuss the

However, according to the reasoning of the judgment below and the judgment of the court of first instance, the court of first instance sentenced the defendant to a punishment of one year and six months, including 45 days of pre-trial detention, and appealed only by the defendant. The court of first instance revoked the judgment of the court of first instance on the ground that the court of first instance erred in calculating the pre-trial detention period of the court of first instance, and sentenced the period of detention of the court of first instance to a sentence of one year and six months, and included 40 days of pre-trial detention period of the court of first instance. According to the records, it is obvious that the period of detention prior

However, in a case where only the defendant appealed an appeal, even if the number of days pending trial in the first instance was erroneous, the appellate court cannot render a judgment disadvantageous to the defendant. Thus, as seen earlier, the court below revoked the judgment of the first instance and sentenced the imprisonment before the judgment of the first instance to the same extent as the judgment of the first instance, and sentenced the imprisonment before the judgment of the court of first instance to the extent that only the number of days under detention prior to the judgment of the first instance is reduced to the judgment of the court of first instance is unlawful against the principle of prohibition of disadvantageous alteration (see, e.g., Supreme Court Decisions 66Do1500, Dec. 27, 196; 93Do2563, Feb.

Therefore, the judgment of the court below is reversed, and this case is sufficient to read, and it is decided directly by the members in accordance with Article 396 of the Criminal Procedure Act.

Considering the grounds for appeal by the Defendant’s health unit and the conditions of sentencing indicated in the record, it is not recognized that the sentence of the first instance judgment is too unreasonable. Thus, there is no reason to discuss. However, as seen in the grounds for reversal, although the judgment of the first instance was included in excess of the number of days pending trial, the judgment of the first instance court cannot be reversed solely on the above grounds in the instant case where only the Defendant appealed.

Therefore, the defendant's appeal is dismissed, and the whole number of detention days (the number of detention days before the appeal is filed and the judgment is rendered after the appeal is filed shall be included in the original sentence of the first instance judgment) before the appeal is filed.

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

Justices Jeong Jong-ho (Presiding Justice)