[상소권회복인용결정에대한재항고][미간행]
In a case where the defendant was sentenced to a fine due to the crime of injury in the first instance court, but his whereabouts became unknown, and was detained in the detention house after the appellate court ruling dismissing the appeal by means of service by public notice became final and conclusive, and the prosecutor directed the execution of detention in the workhouse on June 18, 2019 and notified the defendant on September 23, 2019, and requested the recovery of the right to appeal against the above fine, the court held that the court below erred by misapprehending the legal principles as to the recovery of the right to appeal as to the period of appeal, on the grounds that the defendant was notified of the direction of the execution of detention in the workhouse on the above fine, and thus, it can be deemed that the reason for the request for recovery of the right to appeal was final and conclusive, on the grounds that there is room for deeming that the defendant filed a request for recovery of the right to appeal after a considerable period from the date on which the grounds for the request for recovery of right to appeal was closed.
Articles 345, 346(1), and 347 of the Criminal Procedure Act
Defendant
Prosecutor
Incheon District Court Order 2019Hu2428 dated November 18, 2019
The order of the court below is reversed, and the case is remanded to the Incheon District Court.
The grounds of reappeal are examined.
When a defendant has failed to file an appeal within the period for filing an appeal due to a cause not imputable to him/herself or his/her representative, he/she may file a request for recovery of his/her right to appeal (Article 345 of the Criminal Procedure Act). A request for recovery of his/her right to appeal shall be filed in writing to the court of original judgment within a reasonable period from the date when such cause ceases to exist to exist
According to the record, the following facts are revealed. The Defendant was punished by a fine of 2.5 million won on January 12, 2018 (Seoul District Court 2017 High Court 2017 High Court 2658), and the Defendant appealed therefrom. On September 23, 2018, the appellate court rendered a judgment dismissing the appeal on November 23, 2018 (Seoul District Court 2018No200), which became final and conclusive around that time. The Defendant was detained on a separate basis on June 14, 2019, and was detained in the Incheon Detention House, and the Prosecutor directed the execution of detention in the workhouse, accompanied by a certified copy of the judgment, and the Defendant was notified on June 18, 2019, on September 23, 2019, the Defendant claimed for the recovery of the right to appeal against the above appellate judgment to recover from the right to appeal on September 23, 2019. The lower court cited this on the ground of this case.
Examining these facts in light of the aforementioned legal principles, the Defendant was notified of the direction for the execution of detention in a workhouse on June 18, 2019, and thus, can be deemed to have the grounds for the request for recovery of right of appeal. There is room to deem that the Defendant filed a request for recovery of right of appeal of this case after a considerable period has elapsed from the date on which the grounds for the request for recovery of right of appeal were terminated. The lower court did not exhaust all necessary deliberations and erred by misapprehending the legal doctrine regarding the period of the request for recovery of right of appeal. The grounds for re-appeal pointing this out are with merit.
Therefore, the reappeal is with merit, and the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Dong-won (Presiding Justice)