[1] Whether the defendant has the right to appeal against the dismissal judgment (negative)

[2] In a case where the court below did not dismiss an appeal and reversed the judgment of the court of first instance and remanded to the court of first instance because the defendant did not have the right to appeal against the judgment dismissing the public prosecution, the case reversing the judgment of the court of first instance on the ground that the above appeal constitutes a case where it is obvious that the defendant violated the legal method and dismissed the appeal

[1] The essence of an appeal for a defendant is to correct a judgment disadvantageous to the defendant and claim for a judgment favorable to him/her. Therefore, the defendant has no right to appeal against it unless the judgment is disadvantageous to him/her. When a judgment dismissing a public prosecution is rendered, the defendant is out of the risk of conviction, and such judgment is deemed disadvantageous to the defendant, and there is no right to appeal against it

[2] In a case where the court below did not dismiss an appeal and reversed the judgment of the court of first instance and remanded it to the court of first instance, the case reversing the judgment of the court of first instance on the dismissal of public prosecution on the ground that the above appeal constitutes a case where it is obvious that the defendant violated the legal method, and thus, dismissed the judgment of the court below.

[1] Articles 327 and 338 of the Criminal Procedure Act / [2] Articles 327, 338, 360(1), 362(1), and 396(1) of the Criminal Procedure Act

[1] Supreme Court Decision 83Do632 delivered on May 10, 1983 (Gong1983, 995) Supreme Court Decision 97Do1211 delivered on August 22, 1997 (Gong1997Ha, 2970)

Defendant

Defendant

Seoul Central District Court Decision 2007No1391 Decided July 26, 2007

The judgment of the court below is reversed. The defendant's appeal is dismissed.

1. We examine ex officio.

The essence of an appeal for a defendant is to correct a judgment disadvantageous to the defendant and claim a judgment favorable to him/her. Therefore, if the judgment is not disadvantageous to him/her, the defendant does not have the right to appeal against it. When a judgment dismissing a public prosecution is rendered, the defendant is out of the risk of conviction and such judgment cannot be deemed disadvantageous to the defendant, and there is no right to appeal against it (see Supreme Court Decisions 83Do632 delivered on May 10, 1983; 97Do1211 delivered on August 22, 197, etc.).

According to the records, the defendant filed an appeal against the judgment of the court of first instance which dismissed the public prosecution against the defendant. Since there is no right to appeal against the judgment of the court of first instance which dismissed the public prosecution against the defendant, the defendant's appeal is obviously in violation of the legal method, and the court below reversed the judgment of first instance and remanded the case to the court of first instance, although it is necessary to dismiss the defendant's appeal, such judgment of first instance shall not be dismissed. This judgment of the court below is unlawful and shall not be dismissed. However, since it is recognized that the case is sufficient to render a judgment directly by the party members according to the records of trial, this court's decision

2. The defendant filed an appeal against the judgment of the court of first instance which dismissed the public prosecution, and the defendant, upon the dismissal of the public prosecution, deviates from the risk of conviction, and such judgment is not deemed disadvantageous to the defendant, and thus, the defendant has no right to appeal. Accordingly, the defendant's appeal of this case constitutes an obvious violation of the legal method for filing an appeal, and thus, the defendant's appeal of this case is dismissed in accordance with Articles 362 (1) and 360 (1) of the Criminal Procedure Act.

3. Therefore, the lower judgment is reversed, and the Defendant’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Hwang-sik (Presiding Justice)