Quasi-appeal against the issuance of detention warrant by a judge of the district court (negative)

Article 416 of the Criminal Procedure Act provides that the subject of quasi-appeal shall be decided by the presiding judge or a commissioned judge. The issuance of a detention warrant shall not be deemed to fall under the presiding judge or a commissioned judge of the district court, not by the court of lawsuit, but by the judge of the district court who issues an individual judge so far as a broad judge is an independent institution. The judge of the district court who issues a detention warrant shall not be deemed to fall under the above presiding judge or a commissioned judge. In addition, in the case of quasi-appeal, there is no restriction like Article 214-2(4) and (9) of the same Act, and in the case of quasi-appeal, there is no restriction like Article 214-2(4) and (9) of the same Act, and thus, if the quasi-appeal against the issuing court of the detention warrant is permitted, it would result in imbalance between the systems for the same purpose as the correction of illegal or unfair judgment. With respect to the judge of the district court who dismisses the application for the detention warrant, the recognition of quasi-appeal against the issuing court of the detention warrant is contrary to equity.

Article 416 of the Criminal Procedure Act

Supreme Court Order 4290Noh299 Dated March 14, 1958 (Noh 6-26)

Quasi-Appellants

Quasi-appeal is dismissed.

The defense counsel of the Quasi-Appellant asserts that the quasi-Appellant's defense counsel of Seoul District Criminal Court claimed revocation of the quasi-appeal of this case on the ground that the quasi-Appellant's issuance of a detention warrant against the Quasi-Appellant on May 28, 1992 was made in spite of the absence of reasonable grounds to suspect that the Quasi-Appellant committed an offense under Article 201 of the Criminal Procedure Act.

Therefore, prior to the judgment on the legitimacy of the reason for the quasi-Appellant’s claim, the court will first examine ex officio whether the issuance of detention warrant by the judge of the district court based on the prosecutor’s request for detention warrant is subject to quasi-appeal.

Article 416 of the Criminal Procedure Act provides that if a presiding judge or a commissioned judge notifies a judge of a judgment falling under any of the following subparagraphs, he/she may request the court to which the judge belongs to cancel or change the judgment, and subparagraph 2 of Article 416 provides that the judge may request the cancellation or change of the judgment:

It is true that the judge of the district court should also include the quasi-appeal in accordance with the above provision of the law by interpreting the quasi-appeal as a purposeological interpretation in terms of the correction of illegal and unfair judgments.

However, this view has the following problems.

First, Article 416 of the same Act provides for the subject-matter of quasi-appeal as the judgment of the presiding judge or a commissioned judge. The presiding judge is the concept of the right to command the lawsuit, etc. (Articles 279, 281, 267, 270, 286, and 303 of the Act) to smoothly proceed with the proceedings, and the commissioned judge can be the judge who conducts a certain trial by the order of the court of lawsuit. However, the issuance of a detention warrant is not by the court of lawsuit, but by the judge of the district court who issues the detention warrant, so long as the judge of the district court who issues the detention warrant falls under the above presiding judge or the commissioned judge, it cannot be viewed as falling under the above presiding judge or the commissioned judge. Thus, the above affirmative theory cannot be viewed as contrary to the above-mentioned provisions of the law.

Second, Article 214-2 of the same Act provides that a suspect detained under a warrant of detention or his/her defense counsel, legal representative, spouse, lineal relative, sibling, head of family, family, cohabitant, or employer may request the competent court to review the legality of detention, thereby establishing a system for review the legality of detention to release the detained suspect when the judge of the competent district court deems that the issuance of the warrant is illegal or unjust. Since the above system for review the legality of detention has been established as a procedure for correcting the illegality and illegality of the warrant issued to the detained suspect, the above theory that permits quasi-appeal prescribed in Article 416 of the same Act can not be grounds for appeal. Article 214-2 (4) of the same Act provides that the court shall not file a complaint against the ruling of dismissal of the request for review the legality of detention, and Article 214-2 (9) of the same Act provides that the court shall not impose any restriction on the legality of detention from the date of receipt of the request for review of the legality of detention to the same extent that it does not interfere with the examination period (Article 205).

Third, in light of the basic spirit and structure of the Korean Criminal Procedure Act, the prosecutor's appeal or reappeal is not allowed in relation to the judgment of the judge of the district court that dismissed the application for a detention warrant (see Supreme Court Decision 4290 type96, Mar. 14, 1958) (see Supreme Court Decision 4290, Mar. 14, 1958).

Therefore, regarding the issuance of warrant by the judge of the district court, the quasi-Appellants of this case shall not be permitted under Article 416 of the Criminal Procedure Act, so there is no reason to further determine whether there is a reasonable ground to suspect that the quasi-Appellants of this case committed the crime. Thus, the quasi-Appellants of this case shall be decided as per the order under Articles 419 and 414(1) of the Criminal Procedure Act.

Judges Gangnam-gu (Presiding Judge)