외국에서 집행된 형 이외 구금의 처리방안에 대한 소고

A Study on the Acceptance of non-penal Detention conducted in Foreign Countries24)

How should the “non-penal detention” conducted in foreign countries be handled in Korea? To review this topic, this article divides matters into three categories. First, it is a case of conviction in a foreign country. In this case, pending detention in a foreign country is included in the sentence of the Korean justice under Article 7 of the Criminal Act. Second, there is a case where an innocent verdict is made in a foreign country. At this time, there is a conflict of opinion as to whether pending detention before the innocent verdict is included in the Korean sentence. The Supreme Court ruling in 2017 ruled that the application of Article 7 of the Criminal Act is excluded, and that it can be considered as the reason for the sentence of Article 51 of the Criminal Act. However, a minority opinion has accepted the application of Article 7 of the Criminal Act. This article critically examines both opinions and suggests that the application of Article 57 of the Criminal Act should include the pending detention held in a foreign country into domestic execution. The third issue is the case where no trial has been conducted in a foreign country. This article examines the two Supreme Court decisions related to this case and suggests the way of incorporating the term of detention in foreign countries into domestic execution through the application of Article 57 of the Criminal Act. In conclusion, this paper argues that “non-penal detention” executed in foreign countries should be incorporated into the domestic sentence in all cases.