[2] Whether the defendant has the right to appeal against the lower court's judgment that is not favorable to the defendant (negative)

1. (a) A request for the reinstatement of a right to appeal shall be filed in writing from the date on which grounds for the reinstatement of a right to appeal are closed to the court of original judgment within a reasonable period, and an appeal shall be filed simultaneously with such request (Article 346(1) and (3) of the Criminal Procedure Act).

Unless there are special circumstances, the court below sent the notification of the receipt of the trial record and the public prosecutor's statement of reasons for appeal on the grounds of unfair sentencing, and the public prosecutor appealed and submitted the reasons for appeal on the grounds of unfair sentencing while the defendant was absent. When the defendant was detained separately, the court below sent the notification of the trial records and the public prosecutor's statement of reasons for appeal. In the event the defendant becomes aware of the date, case number, name of the crime and sentence through the public prosecutor's statement of reasons for appeal, etc., the court below should have known the fact that the judgment was pronounced on the date of receiving the notification of the trial records and the public prosecutor's statement of reasons for appeal, and thus, it should be deemed that the reason for requesting the recovery

B. According to the record, the following facts are revealed.

(1) On December 23, 2016, the first instance court served a copy, etc. of the indictment on the Defendant’s domicile; however, on December 23, 2016, the Defendant served a copy, summons, etc. of the indictment by public notice pursuant to Article 23 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings through the detection of location, etc. along with the correction of address that is not served with the addressee’s unknown address; and served a trial with the Defendant’s absence, and sentenced the Defendant to one year of imprisonment for

(2) On September 19, 2017, the prosecutor appealeds the above judgment on the grounds of unreasonable sentencing, and thereafter filed a statement of grounds for appeal. When the Defendant was detained on separate grounds and detained in Busan detention center, the lower court sent the notification of the receipt of the trial records and the written notice for the appointment of a state appointed defense counsel to the Defendant, and the Defendant was served on April 9, 2018.

(3) The written notification of the receipt of the trial record of this case contains a case number of the first instance judgment, and the prosecutor’s grounds of appeal include the date and case number of the first instance judgment, summary of the first instance judgment, criminal name and sentence.

(4) On April 27, 2018, the Defendant filed a statement of grounds for appeal on the grounds of unfair sentencing with the lower court.

(5) The lower court rejected the prosecutor’s appeal on the grounds that it cannot be deemed that there was a legitimate appeal from the Defendant.

C. Examining the foregoing facts in light of the aforementioned legal principles, the Defendant became aware of the existence of the lower judgment through the notification of the receipt of the trial records and the prosecutor’s statement of grounds of appeal on April 9, 2018, and the grounds for appeal that could not file an appeal were extinguished, and no legitimate petition for recovery of the right to appeal was filed within the period for filing an appeal from that date. The grounds for appeal filed on April 27, 2018 cannot be deemed as having been filed after the period for filing an appeal expired

The judgment of the court below is just in accordance with the above legal principles, and the judgment of the court below did not err by misapprehending the legal principles regarding recovery of appeal and service by publication, or by infringing the defendant's right

2. The essence of an appeal for a defendant is to file an appeal for a lower court’s judgment against the lower court’s judgment to correct the judgment unfavorable to the defendant. Thus, unless the judgment of lower court is unfavorable to the defendant, the defendant has no right to file an appeal (see Supreme Court Decision 2005Do4866, Sept. 15, 2005, etc.).

As seen earlier, the lower court dismissed the prosecutor’s appeal regarding the instant case on the ground of unfair sentencing by the prosecutor only. Examining the foregoing legal doctrine in light of the foregoing, the lower judgment cannot be deemed to be a judgment unfavorable to the Defendant, and the Defendant did not have the right to appeal, and the

Furthermore, the lower court did not err by misapprehending the legal doctrine on ex officio matters to be tried, as otherwise alleged in the grounds of appeal.

3. Conclusion

The Defendant’s appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won (Presiding Justice)