Where a person who has waived the right to appeal contests the validity of waiver of appeal after the lapse of the period for filing an appeal, whether the person who has waived the right to appeal may request the recovery of appeal along with the filing of an appeal (affirmative)

The right to appeal is claimed by a person who is unable to file an appeal within the period for appeal due to a cause not attributable to himself/herself or his/her representative. Thus, the person who files an appeal while disputing the validity of waiver of appeal after waiver of the right to appeal and prior to the lapse of the period for appeal shall be subject to judgment on the legitimacy of appeal at the original court or the appellate court, and there is no possibility to separately request the reinstatement of appeal. However, after waiver of the right to appeal and the lapse of the period for appeal, the person who asserts that he/she or his/her representative was unable to file an appeal within the period for appeal due to a cause not attributable to himself/herself or his/her representative may file an appeal and request the recovery of his/her right to appeal at the same time. In such case, if it is recognized that the waiver of appeal is not recognized as void or null, or that the period for appeal was not observed due to a cause not attributable to himself/herself or his/her representative, the court

Article 345 of the Criminal Procedure Act

Supreme Court Order 84Mo40 dated July 11, 1984 (Gong1984, 1461) 99Mo40 dated May 18, 199 (Gong1999Ha, 1435) Supreme Court Order 2002Mo180 dated July 23, 2002 (Gong2002Ha, 2124)

Re-appellant

Suwon District Court Order 2003Hu1656 dated November 25, 2003

The reappeal is dismissed.

The grounds of reappeal are examined.

1. The right to appeal is claimed by a person who is unable to file an appeal within the period for filing an appeal due to a cause not attributable to himself or his representative. Thus, the person who files an appeal while disputing the validity of waiver of appeal after waiver of right to appeal prior to the lapse of the period for filing an appeal shall be subject to a judgment on the legitimacy of the appeal at the original instance court or the appellate court, and there is no possibility for filing an appeal separately (see Supreme Court Order 9Mo40, May 18, 1999); however, the validity of waiver of appeal after the lapse of the period for filing an appeal after waiver of right to appeal is over; while a person who asserts that he or his representative fails to file an appeal within the period for filing an appeal due to a cause not attributable to himself or his representative, he may file an appeal and recover the right to appeal (see Supreme Court Order 84Mo40, Jul. 11, 1984; Supreme Court Order 200Mo180, Jul. 23, 2002>

2. According to the reasoning of the order of the court below, the court below rejected the Re-Appellant's claim for recovery of appeal of this case in order to obtain a decision of the court of final appeal since the Re-Appellant's refusal of appeal of this case was invalid, and the Re-Appellant's claim for recovery of appeal of this case was not complied with due to a cause not attributable to the Re-Appellant or his representative, and it cannot be the subject of recovery of appeal claim of this case. Even if the Re-Appellant's claim for waiver of appeal of appeal of this case was deemed to have submitted a written waiver of appeal right by another person's force, and even if it is viewed to the purport of the Re-Appellant's claim for compulsory performance of appeal of this case, it cannot be the subject of recovery of appeal claim of this case.

3. According to the records, the re-appellant appealed for six months in the case of violation of the Punishment of Violences, etc. Act by Sungwon District Court 2003Kadan1850 decided August 18, 2003. On November 12, 2003, Suwon District Court 2003No3217 decided the dismissal of appeal. The Re-Appellant is present at the date of the declaration of the case and submitted a written waiver of appeal to Suwon District Court 2003No3217 decided November 12, 2003, and the re-appellant submitted an application for recovery of appeal of this case to the head of Suwon District Court 2 November 22, 2003, after the period for filing the appeal expires, and there is no evidence to prove that the re-appellant had mental disorder at the time of waiver of the appeal, had waiver of appeal by another person's coercion, or could not comply with the period for filing the appeal.

In this case, the Re-Appellant's waiver of the right to appeal cannot be deemed null and void, and the Re-Appellant cannot be deemed to have failed to observe the period of appeal due to a cause not attributable to himself/herself or his/her representative. Therefore, the Re-Appellant's claim for recovery of appeal is groundless.

On the other hand, the application for the continued execution of the appeal procedure under Article 154 of the Rules on Criminal Procedure is a system that allows relief by asserting the waiver of appeal or the absence of withdrawal or the invalidation of appeal in a case where the procedure of appeal is completed without a trial on the grounds that the defendant, etc. submitted a document of waiver or withdrawal of appeal after the appeal was filed, or the statement was made in the same contents in the court. Thus, it cannot be deemed that the purport of the application for the continued execution of the appeal procedure is included

The court below's explanation on the ground that the appeal of this case can be seen as the purport of the appeal procedure's application is erroneous, but it is just in its conclusion to reject the re-appellant's request for recovery of appeal, and it is not erroneous in the misapprehension of legal principles as otherwise alleged in the ground for reappeal. The ground for reappeal cannot be accepted

In addition, a person who has waived an appeal cannot re-appeal the case pursuant to Article 354 of the Criminal Procedure Act. Thus, the court below should have dismissed the appeal of the re-appellant on the ground that it was filed after the termination of the right to appeal due to the waiver of appeal, and that it was unlawful, in addition to the judgment of the case of this case on the waiver of appeal of the re-appellant where there are no special circumstances such as non-existence or invalidation grounds.

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

Justices Kim Yong-dam (Presiding Justice)