In a case where the defendant claims restoration of the right to appeal against the same judgment of the first instance after the judgment of the appellate court rendered by the prosecutor's appeal against the judgment of the first instance (=decision of dismissal)

Except in cases where a defendant or prosecutor appeals against the judgment of the court of first instance and the case is remanded or transferred from the court of final appeal after the court of final appeal rendered a judgment, the appellate court may not render a judgment by proceeding with the appellate trial proceedings again. Therefore, if the appellate court rendered a judgment, the right to appeal against the judgment of the court of first instance is extinguished, and thus, the claim for recovery of the right to appeal against the judgment of the court of first instance and the appeal cannot be deemed lawful. The same applies to cases where the defendant was absent in the presence of the defendant under special cases concerning

Therefore, in a case where the defendant claims the recovery of the right to appeal against the same judgment of the first instance after the judgment of the appellate court rendered by the prosecutor on the appeal of the first instance court, it cannot be deemed lawful, and it should be dismissed by the decision pursuant to Article 347(1) of the Criminal Procedure

Articles 347 and 365 of the Criminal Procedure Act, Article 23 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings

Re-appellant

Seoul Eastern District Court Order 2016Ro38 dated September 19, 2016

The reappeal is dismissed.

The grounds for reappeal are examined ex officio prior to judgment.

1. As to the judgment of the first instance, the appellate court may not render a judgment by proceeding with the appellate court proceedings, except in cases where the case is remanded or transferred from the appellate court after the appellate court rendered a judgment after the defendant or prosecutor appealeds the judgment of the first instance. Therefore, upon a judgment of the appellate court, the right to appeal against the judgment of the first instance is extinguished, and thus the claim for recovery of the right to appeal against the judgment of the first instance and the appeal cannot be deemed lawful. The same applies to cases where the judgment of the first instance or the appellate court is not present while the defendant was absent

Therefore, in a case where the defendant claims the recovery of the right to appeal against the same judgment of the first instance after the judgment of the appellate court rendered by the prosecutor on the appeal of the first instance court, it cannot be deemed lawful, and it should be dismissed by the decision pursuant to Article 347(1) of the Criminal Procedure

2. The record reveals the following facts.

A. On June 17, 2010, the first instance court rendered a judgment of conviction for one year and six months with respect to the Re-Appellant, who was absent by the Re-Appellant pursuant to Article 23 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings.

B. On October 1, 2010, the Prosecutor appealed the first instance judgment on the ground of unfair sentencing. The appellate court: (a) deemed that there was an error in the procedure of service by public notice in the first instance judgment; (b) served a writ of summons, etc. by public notice again; and (c) served the second instance judgment on October 1, 2010 after the re-appellant was absent pursuant to Article 365 of the Criminal Procedure Act; (d) reversed the first instance judgment ex officio;

C. On June 7, 2016, the re-appellant filed a claim for recovery of the right to appeal against the judgment of the first instance court. On July 29, 2016, the first instance court dismissed the claim for recovery of the right to appeal on the ground that the re-appellant cannot be deemed to be due to any cause not attributable to the re-appellant even if the re-appellant was unable to file an appeal within the appeal period. Although the re-appellant filed an immediate appeal against the above decision of the first instance court, the lower court dismissed the claim for recovery of the right to appeal on the ground that the first instance court, which dismissed the claim for recovery of the right to appeal due to the foregoing reason, was just,

3. Examining the above facts in light of the legal principles as seen earlier, the re-appellant’s application for recovery of the right to appeal of this case was filed in the same judgment of the first instance after the prosecutor was already sentenced to the appellate court’s appeal against the judgment of the first instance court, and cannot be deemed lawful. Therefore, the lower court should have dismissed the re-appellant’s immediate appeal by its decision without any need to determine the cause for recovery of the right to appeal. Nevertheless, the lower court maintained the decision of the first instance court that dismissed the re-appellant’s claim for recovery of the right to appeal of this case on the premise that the claim for recovery of the right to appeal of this case is lawful and that the cause is not recognized. This decision of the lower court was somewhat inappropriate, but it is justifiable in its conclusion to dismiss the

4. Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)