Time Limit of Filing for Formal Trial

[25-2(B) KCCR 224, 2012Hun-Ba428,October24, 2013]

In this case, the Court held that Article 453(1) of the Criminal Procedure Act, which provides that a motion for formal trial should be filed “within seven days from service of the notice of a summary order”, does not infringe on the summary judgment defendant's right to formal trial or the right to equality.

Background of the Case

(1) The complainant received a summary order imposing 1 million Korean won in fines for violating the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. (defamation), etc. on August 17, 2012. The copy of the said summary order was initially received by the complainant's mother on September 7, 2012 and delivered to the complainant on the following day. The complainant applied for restoration of the right to formal court proceedings on September 17, 2012, after failing to comply with the designated time limit under Article 453(1) of the Criminal Procedure Act based on notice being delivered on September 7, 2012. However, the application was denied.

(2) The complainant filed an immediate appeal against the decision and filed for motion to request constitutional review of Article 452(1) of the Criminal Procedure Act that stipulates the time limit for filing formal proceedings as “within seven days from service of the notice of a summary order.” However, the motion was denied, and the complainant filed this constitutional complaint.

Provision at Issue

The subject of review is the constitutionality of the part of Article 452(1) of the Criminal Procedure Act (enacted Act No. 341, Sept. 23, 1954) which

concerns the defendant (hereinafter the “Provision”), which is set out below:

Criminal Procedure Act

Article 453 (Demand for Formal Trial)

(1) A public prosecutor or the defendant may apply for formal trial within seven days from the day on which he has received notification of a summary order. A defendant may not waive his right to demand formal trial.

Summary of the Decision

1. Whether the Right to Trial is Infringed

The legislature has reasonable discretion in establishing the “time limit for requesting trial or filing an appeal”, which is part of the right to trial as provided in Article 27(1) of the Constitution. However, legislative discretion has its limitations ast it may not make it virtually impossible to file suit or appeal or make it difficult through unreasonable, unjustifiable means and thereby render insignificant the right to trial.

Summary judgment is notified by service of a written order unlike regular criminal trials, so the actual time limit for appeal against summary procedures can be shortened under the Provision compared to regular criminal cases. However, summary procedures are applied in minor cases where only fines and penalties are imposed so that minor cases are dealt with promptly, allowing efficient allocation of judicial resources for the right to trial of citizens to be faithfully protected. Therefore, such limit on the time period for filing an appeal has reasonable grounds. In addition, when a failure to comply with the time limit for filing formal trial stems from causes not attributable to the defendant's responsibilities, the summary order defendant is entitled to seek relief through applying for restoration rights. Appeal against summary judgments is simple in its subject and scope, and there is no

need to specify the reason for appeal either, which means the request for formal trial does not require much time and effort.

Therefore, the Provision does not infringe on the right to request formal proceedings of a defendant who has been issued a summary order by overstepping the reasonable boundary of legislative discretion.

2. Whether the Right to Equality is Infringed

The essence of dispute in civil litigation involves private matters or individual remedies, so it is not so urgent to finalize the proceedings promptly in civil litigation as in the case of criminal litigation. Meanwhile, criminal procedure, which is an exercise of the state's authority to punish crime, strongly requires matters of law to be promptly finalized to prevent destruction or distortion of evidence for substantial fact-finding, and to promptly enforce punishment for general and special prevention, etc.

In addition, summary proceedings deal with relatively minor offences punished only by fines and penalties, the cases that do not involve restriction on the right to life and personal liberty as opposed to criminal procedures. Stressing promptness and efficiency in such minor cases will enable efficient allocation of judicial resources as a whole, which can be a way of protecting the constitutional right to trial more effectively.

In that sense, setting a different time limit for appealing against a summary order than that for appeals against rulings of civil, administrative trials, or applying the same time limit as in regular criminal cases both has reasonable grounds. Thus, the Provision does not infringe on the equality rights of the summary order defendants.

Dissenting Opinion of Four Justices

Article 27(3) of the Constitution provides for fundamental rights of the

accused to public trial in criminal cases. Article 27(1) of the Constitution guarantees the right to trial, which includes the right to a fair trial in which the adversary system and principle of oral proceedings are to be observed and where the parties concerned are given the full right to attack and defend, such as reply to, prove or disprove the charged facts. Therefore, summary proceedings conducted in written briefs not public trial, and based on materials unilaterally submitted by the prosecutor, are an exception to the right trial guaranteed by the Constitution.

The defendant who has received a summary order can restore his/her constitutional right to trial restrained in such an exceptional procedure by filing for formal proceedings. The legislature should carefully note the said significance of the request for formal trial and establish a system for appeal against summary procedures so that fundamental rights of the defendant are not arbitrarily infringed.

Yet, the provision on supplementary service of the Civil Procedure Act shall applymutatis mutandisto the notification of summary orders, which indicates that summary orders served to a representative of the defendant other than the defendant him/herself are also effective. This means that, under the Provision, the time the defendant actually receives the notification of a summary order could be delayed to the point where the exercise of the right to request formal trial becomes irrelevant. In some cases, the defendant could even miss the time limit for formal trial request without knowing the fact that an order has been issued.

The Provision allows for only seven days to file an appeal without taking into account the inevitable incompleteness of “servicing documents”, which becomes the starting point of the filing period. Thus it infringes on the fundamental right “to a fair and public trial” of a defendant who has received summary order, by making it possible to lose the right to request formal trial against his/her will.