[1] Whether the appellate case may be tried before the deadline for filing the appellate brief (negative) / Where the appellate brief has been concluded within the deadline for filing the appellate brief, and the appellate court has filed the appellate brief within the deadline for filing the appellate brief, whether the appellate court shall resume the pleadings and review the grounds for appeal (affirmative in principle)

[2] In a case where: (a) the Defendant filed an appeal against the first instance judgment; and (b) the notice of receipt of court records from the lower court was served on July 4, 2017 to the Defendant’s private defense counsel on July 6, 2017; and (c) the Defendant and the private defense counsel stated on July 19, 2017 that the grounds for appeal are erroneous facts and unreasonable; and (d) the Defendant and the private defense counsel stated that they will submit a subsequent statement of grounds of appeal on July 19, 2017; (b) the lower court concluded the pleadings and designated the date of pronouncement as August 9, 2017 by the Defendant’s private defense counsel on July 21, 2017; and (c) filed a written judgment on the designated date without resumption of pleadings, the case holding that the lower court erred by misapprehending legal principles as to the period for submitting the grounds of appeal

[1] According to the provisions of Articles 361-3 and 364 of the Criminal Procedure Act, the appellate court’s structure is to be tried by the appellate court based on the appellate brief submitted by the defendant or his/her defense counsel within the statutory period, and even if the appellate brief has already been filed, the grounds for appeal may be added, changed, and withdrawn. Thus, the appellate case may not be tried without waiting the expiration of the period for submitting the appellate brief. Therefore, if the appellate brief has been filed within the period for submitting the appellate brief within the submission of the appellate brief and the appellate brief has been filed within the period for submitting the appellate brief, the appellate court shall

[2] In a case where the defendant filed an appeal against the judgment of the court of first instance, and the notification of receipt of the court records was served on July 4, 2017 by the court below to the defendant, and the defendant's private defense counsel on July 6, 2017, and the defendant and the private defense counsel stated that the grounds for appeal are erroneous facts and unreasonable sentencing on the first day of July 19, 2017, and that subsequent submission of the grounds for appeal was scheduled. The court below decided that the defendant's private defense counsel did not submit the grounds for appeal on August 9, 2017, after closing the pleadings and designating the date for sentencing as of August 21, 2017, while submitting the grounds for appeal stating erroneous facts and the grounds for unfair sentencing, it is difficult to view that the period for submission of the grounds for appeal by the private defense counsel of the court of first instance was within the period for submission of the grounds for appeal, and that the defendant and the private defense counsel did not submit the grounds for appeal within 20 days from July 6, 2017, 2017.

[1] Articles 361-3 and 364 of the Criminal Procedure Act / [2] Articles 361-3, 361-5, 364, and 383 subparagraph 1 of the Criminal Procedure Act

[1] Supreme Court Decision 2004Do2611 Decided June 25, 2004 (Gong2004Ha, 1295), Supreme Court Decision 2006Do8591 Decided January 25, 2007, Supreme Court Decision 2015Do1466 Decided April 9, 2015 (Gong2015Sang, 713)

Defendant

Defendant

Attorney Cho Ji-ok

Suwon District Court Decision 2017No1723 decided August 9, 2017

The judgment of the court below is reversed, and the case is remanded to the Gu Government District Court.

The grounds of appeal are examined.

According to the provisions of Articles 361-3 and 364 of the Criminal Procedure Act, the appellate court’s structure is to be tried by the appellate court based on the appellate brief filed by the defendant or his/her defense counsel within the statutory period, and even if the appellate brief has already been filed, the grounds for appeal may be added, changed, and withdrawn. Thus, the appellate case may not be tried without waiting the expiration of the period for submitting the appellate brief (see Supreme Court Decision 2004Do2611, Jun. 25, 2004; Supreme Court Decision 2006Do8591, Jan. 25, 2007). Accordingly, if the pleadings were concluded within the period for submitting the appellate brief and the appellate brief was filed within the said period for submitting the appellate brief, barring any special circumstance, the appellate court shall resume pleadings and review the arguments in the grounds for appeal (see Supreme Court Decision 2015Do1466, Apr. 9, 2015).

According to the records, the court below, upon receiving an appeal against the judgment of the court of first instance, served a notice of receipt of the records of trial, and served the notice on July 4, 2017 to the defendant's private defense counsel on July 6, 2017, and the defendant's private defense counsel on July 19, 2017; ② the defendant and the private defense counsel stated that the grounds for appeal should be alleged as mistake of facts and unfair sentencing on the date of the first hearing held on July 19, 2017; and the court below concluded the pleadings and designated the date of pronouncement as August 9, 2017; ③ the private defense counsel of the defendant requested postponement of the date of pronouncement while submitting the appellate brief stating the grounds for misconception of facts against the judgment of the court of first instance and the grounds for appeal stating unfair sentencing on July 21, 2017; and on August 8, 2017, the court below failed to resume pleading the grounds for appeal claiming the admissibility of evidence, etc.

In light of the above legal principles, we examine whether the judgment of the court below was erroneous.

In this case, the period for submission of the statement of grounds for appeal by a private defense counsel is up to July 26, 2017, which is within 20 days from July 6, 2017, on which a notice of receipt of the records of trial was served. The defendant and the private defense counsel made an oral statement that the grounds for appeal were erroneous facts and unreasonable sentencing on the first day of July 19, 2017, but at the time, there was no submission of the statement of grounds for appeal that specifically states the grounds for appeal under Article 361-5 of the Criminal Procedure Act. As such, as if each provision of Articles 361-3 and 364 of the Criminal Procedure Act is planned, it is difficult to deem that the grounds for appeal were specified by the statement of grounds for appeal, or that the examination thereof was completed. Furthermore, as long as the legitimate grounds for appeal have been submitted on July 21, 2017, which is within the period for submission of the statement of grounds for appeal after the closure of pleadings, barring any special circumstances,

Nevertheless, the court below, without going through the procedure such as opening a court date after the filing of the statement of grounds for appeal and rendering a judgment to the defendant, filed the statement of grounds for appeal by the deadline for submitting the statement of grounds for appeal until the expiration of the deadline for submitting the statement of grounds for appeal, and deprived the defendant of the opportunity to be tried after oral argument. In such a case, the court below erred by misapprehending the legal principles on the period for submitting the statement of grounds for appeal

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Ko Young-han (Presiding Justice)