Open Decision Ledger · Criminal law
Whether the notation of crediting days of pretrial detention is required, and sentencing that referenced the sentencing guidelines in a case in which public prosecution was instituted before the guidelines took effect
Translated from the Korean original. Read the Korean
Supreme Court, Dec. 10, 2009, 2009Do11448 (judgment)
Case name: 성폭력범죄의처벌및피해자보호등에관한법률위반(13세미만미성년자강간등)
Official text on the National Law Information Center
Question
Does determining the sentence for a crime for which public prosecution was instituted before the sentencing guidelines of the Sentencing Commission of the Supreme Court took effect, by reference to those sentencing guidelines, violate the principle against retroactive application?
Holding
Because the sentencing guidelines have no binding force and are merely reference standards for which respect is required in accordance with the validity of their content, referring to them in a case in which public prosecution was instituted before they took effect does not amount to the retroactive application of an unfavorable law. Moreover, by virtue of the Constitutional Court's decision of unconstitutionality, all days of pretrial detention are automatically credited against the principal sentence, so that no separate determination is required in the judgment.
Summary of the holding, verbatim
위 양형기준은 법적 구속력을 가지지 아니하고(같은 법 제81조의7 제1항 단서), 단지 위와 같은 취지로 마련되어 그 내용의 타당성에 의하여 일반적인 설득력을 가지는 것으로 예정되어 있으므로 법관의 양형에 있어서 그 존중이 요구되는 것일 뿐이다.
Unofficial English translation
The above sentencing standards do not have legal binding force (the proviso to paragraph (1) of Article 81-7 of the same Act), and were merely prepared in the light of the foregoing and are expected to possess general persuasive force by reason of the validity of their contents, so that only their respect is required in the sentencing by a judge.
Disposition
Dismissed Stated in the decision
상고를 기각한다.
Unofficial English translation
The appeal is dismissed.
Form of the test
Existing test applied Stated in the decision
피고인에게 불리한 법률을 소급하여 적용한 위법이 있다고 할 수 없다고 한 사례.
Unofficial English translation
A case in which it was held that there is no illegality in retroactively applying a law unfavorable to the defendant.
Factors
- 판결선고 전 미결구금일수는 그 전부가 법률상 당연히 본형에 산입하게 되었으므로
- 법관이 합리적인 양형을 정하는 데 참고할 수 있는 구체적이고 객관적인 기준
- 위 양형기준은 법적 구속력을 가지지 아니하고
- 법관의 양형에 있어서 그 존중이 요구되는 것일 뿐이다
Unofficial English translation
• Since the entire number of days of detention pending judgment has been computed into the principal sentence as a matter of course under the law,
• concrete and objective standards which a judge may refer to in determining reasonable sentencing
• The above sentencing standards do not have legal binding force, and
• only their respect is required in the sentencing by a judge
Relation to precedent
Follows earlier decisions Stated in the decision
헌법재판소 2009. 6. 25. 선고 2007헌바25 전원재판부 결정
Unofficial English translation
Constitutional Court Decision 2007Hun-Ba25, full bench, decided June 25, 2009
Decisions referred to
[1] 헌법재판소 2009. 6. 25. 선고 2007헌바25 전원재판부 결정(헌공153, 1244)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Even where the sentencing guidelines have been amended after the commission of the crime to the defendant's disadvantage, is it permissible to refer to the amended sentencing guidelines while determining the sentence for a crime committed before the amendment?
If the provision of the Court Organization Act on the effect of the sentencing guidelines is amended so that binding force is conferred upon the sentencing guidelines, or if Article 57 paragraph (1) of the Criminal Act is amended again, this reading will be reexamined.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
When compared with an independent reading by a different line of AI (GPT-6 Astra), which read only the original text without seeing the primary reading, 6 of the 8 axes agreed, while the readings diverged on axis 4 (Form of the test) and axis 8 (Open question and revisit condition).
Axis 4 (Form of the test): Primary “Existing test applied” vs Independent “Elements stated”
Because the original text describes both the general effect of the sentencing guidelines and their application to cases in which public prosecution was instituted before they took effect, the primary reading may place weight on the concrete application, while the independent reading may place weight on the statement of general standards.
위 양형기준은 법적 구속력을 가지지 아니하고Axis 8 (Open question and revisit condition): Primary “Even where the sentencing guidelines have been amended after the commission of the crime to the defendant's disadvantage, is it permissible to refer to the amended sentencing guidelines while determining the sentence for a crime committed before the amendment?” vs Independent “Where the content of the sentencing guidelines has been changed, what limits are there on referring to the changed standards for a crime for which public prosecution was instituted before the change?”
The primary reading asks whether reference is permissible in the case of an amendment unfavorable to the defendant after the commission of the crime, whereas the independent reading asks what limits attend reference to the changed standards in a case in which public prosecution was instituted before the change.
위 양형기준은 법적 구속력을 가지지 아니하고(같은 법 제81조의7 제1항 단서), 단지 위와 같은 취지로 마련되어 그 내용의 타당성에 의하여 일반적인 설득력을 가지는 것으로 예정되어 있으므로 법관의 양형에 있어서 그 존중이 요구되는 것일 뿐이다.Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The court below (Gwangju High Court (Jeonju) 2009No133) did not state in the judgment any matter concerning the crediting of days of pretrial detention before the pronouncement of judgment, and, while determining the sentence for the crime in this case, for which public prosecution was instituted before the sentencing guidelines took effect, it used the sentencing guidelines as reference materials and sentenced the defendant to a term of imprisonment of less than 10 years. The remaining contents of the court below's determination are not specifically ascertainable from the Reasons.
Supreme Court standard: The Supreme Court took the view that, since under the decision of unconstitutionality the days of pretrial detention are as a matter of law automatically credited in full against the principal sentence, the failure to state this in the judgment is not unlawful. It held that in a case in which a term of imprisonment of less than 10 years has been imposed, an argument of impropriety of sentencing is not a lawful ground for final appeal, and that the sentencing guidelines are reference materials without binding force and there is no other restriction on the materials a judge may refer to, so that there is no violation of the principle against retroactive application, and it dismissed the final appeal.
Distinguishing conditions
- Where not the sentencing guidelines but the penal statute itself, as amended to the defendant's disadvantage after the commission of the crime, was applied retroactively
- Where death, life imprisonment, or a term of imprisonment or imprisonment in a prison facility of 10 years or more was imposed, so that impropriety of sentencing constitutes a lawful ground for final appeal
- Where the law confers binding force on the sentencing guidelines or otherwise the legal character of the sentencing guidelines has changed
Record verification notes
Before asserting the same conclusion, it needs to be checked whether the court below treated the sentencing guidelines as mere reference materials or applied them as though they were binding, and whether the sentence imposed falls within the scope of the grounds for final appeal permitted.
From the official text
Points at issue
[1] 형법 제57조 제1항의 일부에 대한 헌법재판소의 위헌결정에 따라 판결에서 별도로 ‘판결선고 전 미결구금일수 산입에 관한 사항’을 판단할 필요가 없어졌는지 여부(적극) [2] 대법원 양형위원회가 설정한 ‘양형기준’의 법적 효력 [3] 대법원 양형위원회가 설정한 ‘양형기준’이 발효하기 전에 공소가 제기된 범죄에 대하여 위 ‘양형기준’을 참고하여 형을 양정한 사안에서, 소급적용금지의 원칙을 위반한 것이 아니라고 한 사례
Unofficial English translation
[1] Whether it became unnecessary to separately determine 'matters concerning the computation of the number of days of detention pending judgment' in a judgment, following the Constitutional Court's decision of unconstitutionality as to part of Article 57, paragraph (1) of the Criminal Act (affirmative) [2] The legal effect of the 'sentencing standards' established by the Supreme Court Sentencing Commission [3] A case in which, where the sentence was determined by reference to the above 'sentencing standards' for a crime for which public prosecution was instituted before the above 'sentencing standards' took effect, it was held that the principle against retroactive application was not violated
Summary of the holding
[1] 형법 제57조 제1항 중 "또는 일부" 부분은 헌법재판소 2009. 6. 25. 선고 2007헌바25 사건의 위헌결정으로 효력이 상실되었다. 그리하여 판결선고 전 미결구금일수는 그 전부가 법률상 당연히 본형에 산입하게 되었으므로, 판결에서 별도로 미결구금일수 산입에 관한 사항을 판단할 필요가 없다고 할 것이다. [2] 법원조직법 제81조의2 이하의 규정에 의하여 마련된 대법원 양형위원회의 양형기준은 법관이 합리적인 양형을 정하는 데 참고할 수 있는 구체적이고 객관적인 기준으로 마련된 것이다(같은 법 제81조의6 제1항 참조). 위 양형기준은 법적 구속력을 가지지 아니하고(같은 법 제81조의7 제1항 단서), 단지 위와 같은 취지로 마련되어 그 내용의 타당성에 의하여 일반적인 설득력을 가지는 것으로 예정되어 있으므로 법관의 양형에 있어서 그 존중이 요구되는 것일 뿐이다. [3] 대법원 양형위원회가 설정한 ‘양형기준’이 발효하기 전에 공소가 제기된 범죄에 대하여 위 ‘양형기준’을 참고하여 형을 양정한 사안에서, 피고인에게 불리한 법률을 소급하여 적용한 위법이 있다고 할 수 없다고 한 사례.
Order
상고를 기각한다.
Unofficial English translation
The appeal is dismissed.
Provisions referred to
[1] 형법 제57조 제1항 [2] 법원조직법 제81조의6 제1항, 제81조의7 제1항 [3] 형법 제1조 제1항, 법원조직법 제81조의6 제1항, 제81조의7 제1항
Read 2026-10-16 · Cross-read 2026-10-16. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
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