[상소권회복기각결정에대한재항고][미간행]
The method of filing a claim for recovery of the right of appeal / Where the indictment, etc. is served to the defendant by means of service by public notice and the defendant is arrested after the judgment became final and conclusive in the absence of the defendant, the date on which the grounds for not being able to file an appeal are closed (=in principle, the date of confinement by execution
Article 346(1) and (3) of the Criminal Procedure Act
Supreme Court Order 2005Mo21 Decided February 14, 2005 Supreme Court Order 2015Mo1991 Decided July 29, 2016
Re-appellant
Cheongju District Court Order 2017Ro33 dated August 16, 2017
The reappeal is dismissed.
The grounds of reappeal are examined.
Article 346(1) and (3) of the Criminal Procedure Act provides that a request for recovery of the right of appeal shall be submitted in writing to the court below within a reasonable period from the date on which the grounds for appeal are closed, and an appeal shall be filed simultaneously with such request (Article 346(1) and (3) of the Criminal Procedure Act). In a case where the indictment, etc. is served to the defendant by means of service, and the defendant is arrested and detained after the judgment became final and conclusive as a result of his/her absence, barring special circumstances, he/she shall be deemed to have known the fact that the judgment of the court rendered a request for recovery of the right of appeal on the date of execution of punishment by such judgment, and the reason for not being responsible for not filing an appeal shall be deemed to have been terminated (see Supreme Court Order 2015Mo1991, Jul. 29, 201). Therefore, if the request for recovery of the right of appeal and appeal were not filed within the period of appeal within the upper time period, the request for recovery of the right of appeal shall not be granted (see, etc.)
On May 22, 2017, the lower court recognized the fact that the re-appellant was detained in the Cheongju prison by executing a sentence for six months of imprisonment without prison labor, which is the judgment on the claim for recovery of the right to appeal of this case, and that the re-appellant was aware of the existence of the said judgment on the date of confinement in prison at least due to the execution of the above sentence. However, the claim for recovery of the right to appeal of this case was filed on June 2, 2017, and dismissed the claim for recovery of the right to appeal of this case on the ground that it was unlawful.
The judgment below is premised on the legal principles as seen earlier, and contrary to the allegations in the grounds of reappeal, there were no errors in violation of the Constitution, laws, orders or rules affecting the trial.
Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Ki-taik (Presiding Justice)