[2] Whether an appeal can be tried before the expiration of the period for appeal (negative)

1. When the appellate court has received the record, it shall immediately notify the appellant and the other party thereof, and when a counsel is appointed before such notification, the appellant shall also notify the counsel thereof (Article 361-2(1) and (2) of the Criminal Procedure Act), and the appellant or the counsel shall submit the statement of grounds for appeal within 20 days after such notification is received (Article 361-3(1) of the Criminal Procedure Act).

The appointment of a defense counsel for one case shall also have effect on other cases joined with the same defendant of the same court: Provided, That the same shall not apply where the defendant or defense counsel has expressed any different intention (Article 13 of the Regulations on Criminal Procedure). Therefore, since the appointment of a defense counsel is not effective for other cases joined after the appointment of a defense counsel, the appointment of a defense counsel shall be effective for the concurrent case by notifying the defense counsel of the receipt of the records of proceedings concerning a case joined into the defense counsel pursuant to Article 361-2 of the Criminal Procedure Act where there is no defense counsel after the appointment of a defense counsel in the appellate court, so that the combined case may also be prepared and submitted for the defendant (see Supreme Court Decision 2017Do13948, Nov. 9, 2017, etc.). In such

The appellate court shall judge on the grounds included in the appellate brief (Article 364(1) of the Criminal Procedure Act), and it is not possible to judge an appellate case without waiting the expiration of the period for submitting the appellate brief (see, e.g., Supreme Court Decision 2004Do2611, Jun. 25, 2004). Therefore, it is unlawful to render a judgment without giving a legitimate opportunity for submitting the appellate brief by failing to notify the attorney who should be notified of the receipt of the appellate brief (see, e.g., Supreme Court Decision 2010Do377, May 27, 2010).

2. The record reveals the following facts.

A. On April 9, 2019, the Defendant appointed a defense counsel with respect to the Seoul Western District Court 2018No1405 case (hereinafter “1 case”). On April 9, 2019, the lower court decided to consolidate the Defendant with the Seoul Western District Court 2019No390 case (hereinafter “2 case”) and the first case.

B. On April 9, 2019, the lower court notified the Defendant of the receipt of the records of proceedings regarding the second case on the same day, but the defense counsel did not notify the receipt of the records of proceedings.

C. On May 9, 2019, the defense counsel stated in the statement of grounds for appeal the defense counsel’s written opinion submitted on the same day on the fourth day of the lower court’s fourth trial. On July 18, 2019, the lower court rejected the defense counsel’s written opinion on the grounds that the defense counsel’s argument was filed after the lapse of the period for filing the statement of grounds for appeal of the first case, and rejected the allegation on the grounds that the defense counsel’s written opinion was considered as the grounds for appeal on the first case, and rendered

3. Examining the above facts in light of the legal principles as seen earlier, the court below should have protected the right of the defendant to receive assistance of the defense counsel by providing the defense counsel with an opportunity to prepare and submit the statement of grounds for appeal for the defendant within the prescribed period from the date the defense counsel received the notice of receipt of the records of trial for the case No. 2 case. Nevertheless, since the court below rendered a judgment without giving the defense counsel an opportunity to submit the statement of grounds for appeal because it did not notify the receipt of the records of trial for the case No. 2 case, the court below erred in the misapprehension of law

4. Therefore, the part of the judgment of the court below regarding the second case should be reversed. Since the above reversed part and the first case are concurrent crimes under the former part of Article 37 of the Criminal Act, one punishment is imposed, the judgment of the court below shall be reversed in its entirety

5. Therefore, without examining the remaining grounds of appeal, the judgment 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 Kwon Soon-il (Presiding Justice)