Whether a judgment dismissing an appeal by a defendant on the sole ground of unreasonable sentencing may be considered as the grounds of appeal for misconception of facts or violation of Acts and subordinate statutes

Although the defendant appealed from the judgment of the court of first instance on the sole ground of unreasonable sentencing, the defendant's appeal against the judgment of the court of first instance which dismissed the defendant's appeal on the ground of lack of merit may not be deemed as the ground of appeal on

Article 383 of the Criminal Procedure Act

Supreme Court Decision 79Do2335 delivered on November 27, 1979 (Gong1980, 12377) 87Do1561 delivered on December 8, 1987 (Gong198, 303) 90Do1688 delivered on October 10, 1990 (Gong190, 230)

A

Defendant

Attorney B

Busan High Court Decision 94No28 delivered on April 13, 1994

The appeal is dismissed. One hundred days out of detention days after the appeal shall be included in the original sentence.

Each ground for appeal by the defendant and his/her state appointed defense counsel shall be examined together.

Although the defendant appealed from the judgment of the court of first instance on the sole ground of unreasonable sentencing as a ground for appeal, the judgment of the court below which dismissed the defendant's appeal on the ground that this argument was groundless cannot be considered as the ground for appeal on the ground of mistake of facts or violation of laws and regulations. (See, e.g., Supreme Court Decision 87Do1561, Dec. 8, 1987; Supreme Court Decision 90Do1688, Oct. 10, 1990; Supreme Court Decision 79Do2335, Nov. 27, 197; etc.) and the conclusion is different even if the defendant asserted it in the court of first instance.

The defendant's assertion of the lawsuit, whether there was no intention to commit murder or not, can not be a legitimate ground of appeal, and further, examining the records, it can be sufficiently recognized that the defendant had the intention to commit the crime of this case against the victim at the time of the crime of this case, and such an act does not appear to constitute defense against the defendant. Furthermore, in this case where a sentence of less than 10 years is rendered, the court below's decision that there was an error of unfair sentencing in the judgment of the court of first instance cannot be a legitimate ground of appeal.

There is no reason to discuss this issue.

Therefore, the appeal is dismissed, and part of the number of days pending trial after the appeal is included in the principal sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Yong-sik (Presiding Justice)