If a petition for a divorce has been rejected but has waived an appeal against a crime of adultery, whether the petition for a divorce has been filed

Since the recovery of right of appeal prescribed by the Criminal Procedure Act and the Military Court Act is permitted when the cause for not making an appeal is not attributable to the intention or negligence of the appellant or his/her representative, if the appeal for divorce, which is the requirement for indictment for the crime of adultery, has been dismissed, has not been filed in case the appeal is not filed but has not been filed in return for the judgment. In this regard, it cannot be said that there is a right of recovery of right of appeal, and that there is no negligence as to the failure to declare the intention of appeal due to the failure to know the fact that the above request for divorce has been rejected.

Article 345 of the Criminal Procedure Act, Article 392 of the Military Court Act

Re-appellant

Attorney Lee In-bok

The Army, High Court Order 85No2 dated March 18, 1985

The reappeal is dismissed.

The gist of the Re-Appellant's reappeal's ground of reappeal is that the Re-Appellant's appeal for divorce against the Re-Appellant's wife, who is the requirement of prosecution for the crime of adultery, is dismissed since the Re-Appellant's wife did not order correction of address, and eventually the defendant's cross-defendant's appeal for the defendant was dismissed without a spouse's complaint. Thus, the Re-Appellant's waiver of appeal without knowledge of this fact constitutes a ground for non-liability of the Re-Appellant's dismissal of the appeal claim of this case, despite the court below's dismissal of the appeal claim of this case is erroneous.

The recovery of the right of appeal prescribed in the Criminal Procedure Act and the Military Court Act shall be allowed when the appellant or his representative fails to make an appeal within the period of appeal due to a cause not attributable to himself or his representative, by the decision of the court of original instance (or the court of original instance) which permits an appeal due to the restoration to the original state in which the right of appeal exists by decision of the court of original instance (or the court of original instance) and the cause not to make an appeal is not attributable to himself or by negligence.

Even according to the re-appellant's ground of reappeal and the statement itself of appeal claim, the re-appellant did not appeal to the appellate court's judgment against the re-appellant, but did not appeal to the appellate court's judgment against the non-appellant. In this regard, the right to appeal can not be deemed to have been claimed first, and it cannot be said that the re-appellant was not negligent in making a decision on appeal because he did not know that the above request for divorce was rejected. Therefore, the court below's dismissal of the claim of this case in the same purport is just and there is no error of law such as misapprehension of legal principles.

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

Justices Park Jong-soo (Presiding Justice)