[정식재판청구기각결정에대한재항고][공2008하,1254]
In case where a request for formal trial without the name and seal of the claimant has been received by mistake as legitimate, measures to be taken by the court (=decision of dismissal) and remedy method by the defendant for whom the period of the request for formal trial has elapsed
A request for formal trial against a summary order shall be submitted in writing, and the documents prepared by a person who is not a public official shall be dated, sealed and sealed (use without a seal affixed thereto). Thus, in a case where there is no name and seal of the requester in the request for formal trial, the request for formal trial is in violation of the statutory method and shall be dismissed by decision, and this is also applicable in a case where a court official receiving the request for formal trial finds that there is a legitimate request without asking for correction even though there is no name and seal of the requester. This is also applicable in a case where a court official misleads that there is a legitimate request without asking for correction: Provided, That the defendant, who was trusted that a legitimate request for formal trial was made due to the above mistake by a court official and trusted that the request for formal trial was not made within the period of request
Articles 59, 345, 453, 455(1), and 458 of the Criminal Procedure Act
Defendant 1 and two others
Defendants
Attorneys Park Byung-il et al.
Seoul Western District Court Order 2008Ro16 dated May 30, 2008
All reappeals are dismissed.
The grounds of reappeal are examined.
A request for formal trial against a summary order shall be submitted in writing (Article 453(2) of the Criminal Procedure Act), and a document prepared by a person other than a public official shall be dated, and a name and seal (use of an obstacle without a seal) shall be attached to the request for formal trial (Article 59 of the Criminal Procedure Act). In the absence of the name and seal of the requester in the request for formal trial, the request for formal trial shall be dismissed by decision because it violates the legal method and shall be dismissed. This is also the same in a case where a court official who receives the request for formal trial finds that a legitimate request is made without the name and seal of the requester, and receives the request due to mistake that there is a legitimate request without the petitioner’s request for formal trial. However, the above mistake made by a court public official, trusting that a legitimate request for formal trial was made, and the defendant, for which the period of the request for formal trial has exceeded,
According to the records, the defendant's column for the formal trial of this case includes the name of the Re-Appellant and the Re-Appellant, but the Re-Appellant's name and seal are omitted, and the Re-Appellant's name and seal are entered in the Re-Appellant's column. Nevertheless, the court official in charge of receipt of the request for formal trial of this case entered it into the computer as not only the Re-Appellant but also the Re-Appellant's request for formal trial, and the court of first instance decided to dismiss the Re-Appellant's request for formal trial on the ground that the Re-Appellant's name and seal were omitted, and the court of first instance
In light of the above legal principles and records, the judgment of the court below which dismissed the Re-Appellant's request for formal trial of this case is just, and there is no violation of the Constitution, law, order or rule that affected the judgment.
Therefore, all reappeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Ahn Dai-hee (Presiding Justice)