The case reversing the judgment of the court below which rendered a judgment on the merits with the lapse of the period for the request for formal trial and dismissing the request for formal trial.

Article 455(1) of the Criminal Procedure Act

Defendant

Prosecutor

Seoul Central District Court Decision 2006No2719 Decided January 9, 2007

The judgment of the court below and the judgment of the court of first instance are reversed. The request for formal trial in this case is dismissed.

We examine the grounds of appeal ex officio prior to judgment.

A defendant who intends to request a formal trial against a summary order shall make a written request for formal trial within seven days from the date of notification of the summary order (Article 453(1) and (2) of the Criminal Procedure Act), and when it is evident that the request for formal trial is after the extinguishment of the right to demand it, the court shall dismiss it by its ruling (Article 455(1) of the same Act).

According to the records, on June 14, 2006, a certified copy of the summary order of this case was served on a person living together with the non-indicted. It is evident that the defendant's application for formal trial was submitted seven days after the period of application for formal trial expires.

Therefore, the first instance court should have dismissed the request for formal trial on the ground that the request for formal trial was made after the lapse of the right to request formal trial, and thus, should have dismissed the request for formal trial on the ground that it was unlawful, and the court below reversed and rendered a judgment on the merits of innocence although it should have dismissed the request for formal trial, so the judgment of the first instance court was erroneous in the misapprehension of legal principles as to the period for the request for formal trial, and such illegality affected the judgment.

Therefore, the judgment of the court below is reversed, and this case is deemed to be sufficient for judgment based on the records of trial and the evidence examined up to the court below. Thus, this court directly decides pursuant to Article 396 of the Criminal Procedure Act. Since the judgment of the court of first instance cannot be maintained as there is an error of law affecting the judgment as seen earlier, the request for formal trial is dismissed and it is so decided as per Disposition by the assent of all participating Justices

Justices Kim Ji-hyung (Presiding Justice)