[1] Whether a person can claim the recovery of his/her right of appeal by asserting that the waiver is null and void within the period for filing an appeal after the waiver of appeal (negative)

[2] The purpose of the provision of the application for a continuous appeal procedure under Article 154 of the Regulation on Criminal Procedure, and in a case where an appeal is filed after the waiver of the appeal, whether the above application for a compulsory appeal procedure may be filed (negative)

[1] The right of appeal is claimed by a person who was unable to file an appeal within the period for filing an appeal due to a cause not attributable to himself or his representative, and where the waiver of appeal is asserted as null and void after the waiver of appeal, the right of appeal is asserted in the validity of the waiver of appeal and the judgment on the legitimacy of appeal is obtained prior to the expiration of the period for filing an appeal, and there is no room for separate appeal

[2] The application to proceed with the procedure of appeal under Article 154 of the Rules on Criminal Procedure is a system which provides that in the event the procedure of appeal is completed without a trial on the grounds that the defendant et al. waives or withdraws an appeal after filing an appeal, or the defendant et al. make a statement of the same contents in the court court, the waiver or withdrawal of appeal may be asserted and the non-existence or nullity of the appeal shall be relieved. In case where the defendant files an appeal after the waiver of the appeal, the defendant may be relieved by asserting that the waiver of appeal is nonexistent or null and void in the procedure of appeal pending by the appeal or the procedure of an immediate appeal against the decision of dismissal of appeal by the court of original court.

[1] Article 345 of the Criminal Procedure Act / [2] Article 154 of the Rules on Criminal Procedure

[2] Supreme Court Order 99Mo10 dated April 26, 1999

Defendant

Defendant

Busan High Court Order 99 seconds31 dated February 23, 1999

The reappeal is dismissed.

The grounds of reappeal are examined.

1. According to the reasoning of the order of the court below, the court below dismissed the defendant's claim for recovery of the right of appeal on the ground that although the defendant renounced the appeal at his own discretion after having been sentenced to imprisonment of three and a half years to the court below and six months, the defendant's original intention was changed by his family's recommendation, etc. to obtain a decision of the court of final appeal again, the person who renounced the appeal cannot file an appeal again, and thus, he cannot be viewed as entitled to claim recovery of the right of appeal. Even if the defendant's claim for recovery of the right of appeal is considered as an application for procedural speed based on Article 154 of the Regulation of Criminal Procedure, the defendant's appeal is not a reason to

2. The right of appeal is claimed by a person who is unable to file an appeal within the period of appeal due to a cause not attributable to himself or his representative. According to the records, the defendant, on February 10, 199, was sentenced to imprisonment for a period of three years and six months by the original court, and waived the appeal on the same day, and then filed a petition for recovery of the right of appeal in this case by asserting that the waiver of appeal is null and void on February 13, 199 within the period of appeal filing, and filed a petition for appeal in the original court on February 10, 199. Thus, prior to the expiration of the period of appeal filing, the defendant's claim for recovery of the right of appeal in this case is unlawful.

3. Meanwhile, a request for a continuous appellate procedure under Article 154 of the Rules on Criminal Procedure is a system that allows a defendant to seek relief by asserting the waiver or withdrawal of an appeal or the absence or invalidation of an appeal in a case where the procedure of an appeal is completed without a trial on the grounds that the defendant, etc. waiver or withdrawal of an appeal was submitted after an appeal was filed, or the defendant, etc. stated in the same contents in the court (see Supreme Court Order 9Mo10, Apr. 26, 199). As decided by the court below, even if the defendant's request for the recovery of the right to appeal of this case is considered as a request for continuous appellate procedure under Article 154 of the Rules on Criminal Procedure, if the defendant files an appeal after waiver of the appeal, as in this case, the defendant may be entitled to a remedy by asserting that the waiver or invalidation of the appeal is nonexistent or invalidated in the procedure of an appeal pending by the appeal or the procedure of an immediate appeal against the decision on dismissal of appeal by the court of original instance. Thus,

However, a person who has waived an appeal may not re-appeal the case pursuant to Article 354 of the Criminal Procedure Act. Thus, where the court below deems that there are no special circumstances, such as the absence or invalidation in the waiver of the appeal by the defendant, the court below should dismiss the appeal by its ruling on the ground that the defendant who has raised the appeal was filed after the extinguishment of the right to appeal due to the waiver of the appeal was unlawful (see, e.g., Supreme Court Order 80Mo11, Apr. 4, 1980).

4. Although the court below's reasoning is somewhat insufficient, it is correct that the defendant's request for recovery of his right to appeal was rejected, and there is no error of law as otherwise alleged in the ground for reappeal.

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

Justices Cho Chang-hoon (Presiding Justice)