Statute of Limitation and Filing Method of Immediate Appeal[24-2(B) KCCR 84, 2011Hun‐Ma789, October 25, 2012]

The Constitutional Court, in this case, held that Article 405 the Criminal Procedure Act prescribing the three‐day statute of limitation for filing immediate appeal and Article 406 of the Criminal Procedure Act not having a special provision recognizing the mailbox rule for the instance of filing immediate appeal by registered mail neither infringe on the appealing person's right to trial nor violate his or her rights to equality.

Background of the Case

(1)Complainant filed a request for the institution of prosecution by the court with the Gwangju High Court on around May 26, 2011 but he was served on a decision of dismissal by the court on September 19, 2011. In response, on September 21, 2011, the complainant sent an application for immediate appeal by registered mail and that application arrived at the court on September 23, 2011.

(2)The court dismissed the complainant's application for immediate appeal on the ground that such application was made after the filing deadline stipulated in Article 405 of the Criminal Procedure Act. Against the dismissal, the complainant filed this constitutional complaint with the Constitutional Court on December 7, 2011.

Provisions at Issue

The question presented to us is whether provisions at issue, Article405 and 406 (hereinafter collectively referred as the "Instant Provisions")of the Criminal Procedure Act (enacted by Act No. 341 on September 23, 1954), infringe on the complainant' basic right and the contents of the Instant Provisions are as follows:

The Criminal Procedure Act (enacted by Act No. 341 on September 23, 1954)

Article 405 (Period Allowed for Immediate Appeal)

The period allowed for immediate appeal shall be three days.

Article 406 (Procedure of Appeal)

An appeal shall be filed by presenting a written application to the original court.

Summary of the Decision

1. Court Opinion

A.Whether Article 405 of the Criminal Procedure Act violates the Constitution or not

In principle, Article 27 Section 1 of the Constitution guaranteeing the right to trial before a judge in conformity with statutes states that the citizens' right to remedial procedure shall be guaranteed pursuant to present statutes regarding legal procedure enacted by the legislature. Accordingly, it is a matter to be determined by the legislature's policy judgment based on its discretionary policy‐making power to decide the period for filing a request of legal proceeding and, thus, unless it does not go beyond the limit, reasonable discretion granted to the legislation, the legislation shall not be deemed as unconstitutional.

We found that it is necessary to set the period for filing an immediate appeal as a short period of time for an immediate appeal may be filed for the instances where the parties' significant interests are at stake or a prompt conclusion is necessary for smooth operation of legal proceedings. Meanwhile, provisions regarding the extension of statutory period system (Article 67 of the Criminal Procedure Act and Article 44 of the Criminal Procedure rules), special treatment for an appeal filed by inmates (Article 344 Section 1 of the Criminal

Procedure Act) and system of restoration claim for right to appeal (Article 345 of the Criminal Procedure Act) are applied to an immediate appeal.

Therefore, we cannot find that the three (3) days, the period for filing immediate appeal, goes beyond the scope of discretion in legislation and, thus, infringe on the complainant's right to trial before a judge.

B.Whether Article 406 of the Criminal Procedure Act is against the Constitution or not

(1) Whether right to trial before a judge is infringed or not

As a basic rule, the effect of submission of document to be submitted to the court does not arise until it arrived at the court. Given development of present mass‐transportation and communication technology, locations of each court, extension of statutory period system and availability of delegation of authority to submit document to the court, we cannot find that the need to set forth a special provision recognizing the mailbox rule is to be emphasized. Thus, the fact that such special provision has not been set forth shall not be regarded as going beyond the limit of legislative discretion and thus infringing on the complainant's right to trial before a judge.

(2) Whether the right to equality is infringed or not

Article 406 of the Criminal Procedure Act is a sort of general rule for appeal filing process and, thus, in light of its meaning and purpose, people intending to file an appeal by using registered mail shall be considered to belong to the same group regardless of different distances between the place of their residence and the one where the court is located. In conclusion, the fact that Article 406 of the

Criminal Procedure Act does not have an exceptional provision recognizing mailbox rule for the instances of immediate appeal filing by registered mail does not cause discriminatory effect where two things essentially different with each other are treated in the same way, which makes the complainant's right to equality not infringed.

2. Concurring Opinion of Four Justices

Among criminal trials subject to immediate appeal, lots of them significantly influence on the parties' legal status and, as to the decision process of the criminal trials, the parties are not notified of the decision date in advance. In our view, thus, it is necessary to give the parties, who have been notified of court's decision disfavoring them, a considerable period where they can determine whether they would object to that court's decision or not and, where they can prepare for an appeal if they determine to object should be granted.

In this respect, even though we did not found that the statute of limitation of three days for filing immediate appeal stipulated by Article 405 of the Criminal Procedure Act is strikingly irrational enough to become unconstitutional, the legislature enacting such Article prescribing such three days is not safe from criticism for neglecting the parties' right to object the court's decision out of ensuring prompt completion of criminal proceeding. Therefore, we urge that the legislature should exert its efforts to improve legislation with respect to setting forth the period for filing immediate appeal in order to actually guarantee the parties' right to appeal.