[2] In a case where a reappeal is filed against a decision of prosecution not subject to reappeal, measures to be taken by the court of original instance (=decision of dismissal)

[2] Since the re-appeal procedure under Article 415 of the Criminal Procedure Act (hereinafter “the Act”) does not have any provision concerning the law, the provisions concerning an appeal shall apply mutatis mutandis due to its nature. Meanwhile, under Article 376(1) of the Act, when it is evident that an appeal is filed in violation of the legal method or the right to appeal is extinguished, the court below shall dismiss the appeal by its ruling. In a case where an appeal is filed against a decision on the institution of public prosecution which is not subject to re-appeal, the court below shall dismiss it by ruling, since it clearly violates the legal method of re-appeal. Thus, the court below shall dismiss

Article 262(2) and (4) of the Criminal Procedure Act (hereinafter “the Act”) provides that no objection may be raised against the court’s rejection of an application for adjudication or a decision of prosecution against an application for adjudication following a non-prosecution disposition by a public prosecutor. In a case where there is error in the decision of prosecution under Article 262(2)2 of the Act, the procedure of the principal case is initiated following the prosecution and the case is finally decided by the Supreme Court through a trial of the principal case itself. Thus, it does not infringe the right to final review by the Supreme Court on the judgment, and therefore, the reappeal under Article 415 of the Act is not allowed as to the decision of prosecution under Article 262(2)2 of the Act (see Supreme Court en banc Order 96Mo119, Nov. 20, 197).

In addition, since the procedure of reappeal under Article 415 of the Act does not have any provision in the law, the provisions concerning appeal shall apply mutatis mutandis to its nature (see, e.g., Supreme Court Order 82Mo24, Aug. 16, 1982; Supreme Court Order 86Mo42, Sept. 10, 1986). Meanwhile, according to Article 376(1) of the Act on Appeal, when it is evident that an appeal is in violation of the legal method or the right to appeal is extinguished, the court of original judgment shall dismiss the appeal by its ruling. In a case where a reappeal is filed against the decision to institute a public prosecution which is not the object of reappeal, the court of original judgment shall dismiss it by its ruling since it clearly violates the legal method of reappeal. Thus, the court of original judgment shall dismiss it by its ruling.

In the same purport, the lower court’s determination that a reappeal against the instant order of prosecution rendered on May 1, 2012 is not permissible, and its dismissal is justifiable, and there is no error of law by misunderstanding legal principles as otherwise alleged in the grounds of reappeal. However, the lower court’s application of Article 407(1) of the Act on the Decision of Dismissal of Appeal by the first instance court in making a decision of dismissal on the ground that the reappeal against the instant order of prosecution violated the legal method is erroneous, but even under Article 376(1) of the Act to be applied mutatis mutandis in the procedure of reappeal, the lower court should dismiss it by its ruling, and such error by the lower court does not affect

In addition, the grounds for reappeal by the lower court’s decision as grounds for reappeal do not constitute a legitimate ground for reappeal against the lower court’s order dismissing the grounds for reappeal on the ground that the reappeal against the above order violates the legal method.

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

Justices Yang Chang-soo (Presiding Justice)