In a case where the appellate court reversed the judgment of the first instance and sentenced the defendant to imprisonment with prison labor, and the defendant revoked the ruling of permission for bail of the first instance ex officio, and the defendant was confined to the detention house on the date of the sentence according to the order of execution by the prosecutor acting for the public prosecutor of the high prosecutor's office according to the ruling of revocation of bail, and the ruling of revocation of bail became final and conclusive without any objection, and the defendant asserted that the above disposition of execution direction was in violation of Articles 415 and 410 of the Criminal Procedure Act, and the defendant filed an application for revocation thereof, the case holding that the reappeal against the ruling of revocation of bail of the high court should be filed within the period prescribed by Article 405 of the Criminal Procedure Act as an immediate appeal, but the above immediate appeal does not have the effect of suspending

The appellate court reversed the judgment of the first instance court and sentenced the defendant to imprisonment with prison labor, and ex officio revoked the ruling of permission for release on bail (hereinafter referred to as "decision of release on bail"), and the defendant was confined to the detention house on the date of sentencing according to the direction of execution of the prosecutor acting for the public prosecutor of the high public prosecutor's office by the ruling of cancellation on bail (hereinafter referred to as "order of execution"). The ruling of cancellation on bail became final and conclusive without objection. After that, the defendant asserted that "the ruling of cancellation on release on bail is an immediate appeal by the high court prescribed in Article 415 of the Criminal Procedure Act, and re-appeal against it is the immediate appeal, even if the execution of the judgment is suspended during the period of filing an immediate appeal pursuant to Article 410 of the Criminal Procedure Act, it is illegal to issue an order of execution during

Article 410 of the Criminal Procedure Act applies solely on the ground that the period for revocation of release on bail does not coincide with other tiers, and Article 410 of the same Act applies solely on the ground that the period for revocation of release on bail was implemented by the High Court ruling, it goes against the relevant provisions of the Criminal Procedure Act and the Regulations on Criminal Procedure and the attitude of the Supreme Court precedents, and the exclusion of suspension of execution does not go against the legislative intent of Article 415 of the Criminal Procedure Act, and it can be acknowledged through systematic interpretation of relevant provisions, and rather, it can be interpreted that the suspension of execution should be recognized by applying Article 410 of the Criminal Procedure Act without exception to the decision of the appellate court or the High Court under Article 415 of the Criminal Procedure Act, and the effect of the suspension of execution cannot be seen as going against the legislative purport of the provisions of the Criminal Procedure Act concerning the revocation of release on bail and the effect of suspension of execution, and it is difficult to recognize the effect of an immediate appeal on any ground that it does not go against the legislative purport of the High Court's Act.

Article 12 of the Constitution of the Republic of Korea; Article 415 of the former Criminal Procedure Act (Amended by Act No. 1500, Dec. 13, 1963); Article 97(3) of the former Criminal Procedure Act (Amended by Act No. 5054, Dec. 29, 1995); Articles 23, 101(1), 102(2), 402, 403, 404, 405, 409, 410, 415, 417, and 489 of the Criminal Procedure Act; Article 56(1) of the Rules on Criminal Procedure

Defendant

Defendant

Law Firm (LLC) LLC, Attorneys Song-yeong et al., Counsel for the defendant-appellant

The motion of this case is dismissed.

1. Details of the application of this case

A. The Defendant was indicted by violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) at the Seoul Central District Court 2018 Gohap185, and applied for permission for bail on July 18, 2018 at the court of first instance during the first instance, and was released on the same day after receiving the ruling of permission for bail on July 18, 2018.

B. On November 13, 2018, the Defendant was sentenced to two years of imprisonment and three years of imprisonment and fine of KRW 100 million in the first instance court, but the decision of permission for release on bail was not revoked, and the Defendant appealed against the judgment of the first instance court.

C. On January 22, 2020, the appellate court (Seoul High Court 2018No3341) reversed the judgment of the first instance on January 22, 2020, and sentenced the Defendant to a fine of KRW 100 million, notified the Defendant of the revocation of bail ex officio in the court (hereinafter “the revocation of release on bail”), and issued a written notice of the decision to the prosecutor. The Defendant was confined to the detention center on the same day in accordance with the direction of execution by Nonindicted 1, 2, and 3 (hereinafter “instant disposition”).

D. As the defendant is dissatisfied with the above appellate judgment and filed a final appeal, the defendant's case is still pending in the court of final appeal (Supreme Court Decision 2020Do2094), but the decision to revoke the release on bail of this case becomes final and conclusive without any objection thereto, and the defendant is still under detention from January 22, 202 to the present date.

E. On March 25, 2020, a defense counsel delegated by the Defendant filed the instant application seeking revocation on the ground that the instant disposition was erroneous.

2. Summary of reasons for the application;

According to Article 415 of the Criminal Procedure Act, a reappeal may be filed with the Supreme Court against the High Court. Since the said reappeal is an immediate appeal, the execution of the trial shall be suspended when the period for filing an immediate appeal under Article 410 is within and the filing of such appeal is made. Since the High Court’s ruling on the revocation of release on bail of this case, the period for filing an immediate appeal (seven days) cannot be executed during the period for filing an immediate appeal. Nevertheless, the Prosecutor directed the Defendant of the execution of detention during the period for suspending execution without notifying that the instant ruling on the revocation of release on bail of this case may be filed. Accordingly, the instant disposition is unlawful, and thus, the instant disposition should be revoked as it is unlawful, and as such,

3. Determination

A. Method of appeal against the disposition in this case

According to Article 489 of the Criminal Procedure Act, a person subject to execution of a judgment, or his/her legal representative or spouse, may file an objection with the court that pronounced the judgment on the ground that a public prosecutor’s disposition concerning execution is unreasonable, and such objection is subject to all measures concerning the execution of the judgment pursuant to the Criminal Procedure Act (see Supreme Court Order 2001Mo91, Aug. 23, 2001).

The Defendant asserts that the instant disposition constitutes “disposition concerning detention” as stipulated in Article 417 of the Criminal Procedure Act and sought revocation thereof. However, when a ruling to revoke release on bail has been issued pursuant to Article 102(2) of the Criminal Procedure Act and Article 56 of the Regulation on Criminal Procedure, the prosecutor shall re-detained the Defendant according to the certified copy of the ruling to revoke the release on bail. As such, the instant disposition directed the execution of detention of the Defendant, which is the execution of the ruling on release on bail, and thus constitutes “disposition by the prosecutor on execution of the judgment” as stipulated in Article 489 of the Criminal Procedure Act. The instant application is seeking correction for the reason that the prosecutor’s direction of execution of detention by the ruling to revoke release on bail is illegal, and thus, an objection against the execution of the judgment may be deemed to have been raised practically notwithstanding the statement “quasi-appeal” as stated in the written application. Accordingly, the instant disposition is deemed to be subject to an objection under Article 489 of the Criminal Procedure Act and its propriety is determined (see Supreme Court Order 93Mo535, Aug. 6,

B. Appropriateness of the instant disposition

1) Article 415 of the Criminal Procedure Act provides, “The immediate appeal may be filed with the Supreme Court against the ruling of the appellate court or the high court only on the ground that there is a violation of the Constitution, Acts, orders or rules that have affected the trial.” Article 410 of the same Act provides, “The execution of the judgment shall be suspended when there is an immediate appeal and its proposal during the period allowed for immediate appeal” under the title “the effect of suspending the execution”.

The issue of whether the instant disposition is legitimate in light of the reasons for the application is whether the decision of revocation of bail has an effect on the suspension of execution as stipulated in Article 410 of the Criminal Procedure Act, since an immediate appeal may be filed with the Supreme Court pursuant to Article 415 of the Criminal Procedure Act, in cases where the said decision was made by a collegiate panel of a district court as an appellate court (see Supreme Court Order 2002Mo6, Sept. 27, 2002; hereinafter the same shall apply) and the High Court's decision was made.

Although a reappeal against a ruling to revoke release on bail by the high court is an immediate appeal, it shall be filed within the period prescribed in Article 405 of the Criminal Procedure Act, notwithstanding the language and text of Article 415, it cannot be deemed that the said immediate appeal has the validity of suspending execution as prescribed in Article 410. The reasons are as follows.

A) The time when the ruling on the revocation of bail comes into force cannot be seen as different from other instances in the appellate court.

Article 102(2) of the Criminal Procedure Act provides that the release on bail may be cancelled by the court, either ex officio or upon request of a public prosecutor, in cases where there are sufficient grounds to believe that the defendant escaped (Article 102(2)), the defendant flees or may destroy evidence (Article 102(2)2), the defendant does not appear without justifiable grounds after being summoned (Article 403(2) and does not appear without justifiable grounds), the victim, a person who is deemed to have knowledge of the facts necessary for the trial of the case, or his/her relatives, or where there are sufficient grounds to believe that such act does harm to or may harm the life, body or property of the defendant (Article 4) or where conditions prescribed by the court are violated (Article 5), the release on bail may be cancelled by ruling at any time until the court issues a ruling of revocation on bail under the Criminal Procedure Act. Although there is no provision that an immediate appeal may be filed against the ruling on bail prior to the judgment, the release on bail may be effected rapidly under Articles 403(2) and 402) of the Criminal Procedure Act.

The Supreme Court has confirmed through the precedents that the ruling of cancellation of release on bail should be recognized even before the ruling becomes final and conclusive in accordance with the above provisions of the Criminal Procedure Act, etc. In a case where the ruling of cancellation of release on bail, unlike the ruling of cancellation of release on bail, most of the cases in need of swift and prompt considering its nature (Supreme Court en banc Order 2000Mo22 Decided May 29, 2001) and the ruling of permission on release on bail was cancelled ex officio on the date of the ruling of the court below and executed before the copy of the ruling is served (or notice) on the date of the ruling of the court below on the ground that there is a concern that the ruling of permission on bail might escape, the cancellation of the above ruling of permission on bail can be executed immediately by notifying the decision of cancellation or by delivering or delivering the written decision to the prosecutor of the public prosecutor's office corresponding to the court of the ruling, and it is not possible that the copy of the ruling can be executed (or notice) by the defendant.

Article 410 of the Criminal Procedure Act applies to a ruling of revocation of release on bail, as well as concerns about harm arising from the suspension of execution as a matter of course until the judgment of the High Court becomes final and conclusive. If Article 410 of the Criminal Procedure Act applies to a ruling of the High Court, deeming the same as the time when a ruling of revocation of release on bail takes place differently from the time when the ruling of revocation of release on bail took place in the original appellate procedure, thereby allowing the same effect as the ruling of revocation of release on bail actually fails to take place even if there exists a reason for the cancellation of release on bail. This is to realize due process of law in criminal proceedings based on the constitutional spirit of guaranteeing the maximum freedom of the people by releasing the detention of the defendant through the system of release on bail, while it goes against the purport of the Criminal Procedure Act and the rules on criminal procedure to secure the new illness of the defendant who was released by recognizing

B) The exclusion of the effect of suspension of execution cannot be deemed as going against the legislative intent of Article 415 of the Criminal Procedure Act, and can be recognized through the systematic interpretation of the relevant provisions.

Article 415 of the former Criminal Procedure Act, which was amended by Act No. 1500 on December 13, 1963, provides that an immediate appeal may be filed only against a decision made by the appellate court or the high court under the title of “Prohibition of reappeals and Special Appeal.” However, the aforementioned decision was mostly an immediate appeal under the former Criminal Procedure Act. Article 415 of the amended Criminal Procedure Act, supra, stipulates that an immediate appeal may be filed against a decision made by the appellate court or the lower court on December 13, 1963, shall be the entire decision made by the appellate court or the lower court under the title of “re-appeals,” but it may be filed with the Supreme Court only on the ground that there was a violation of the Constitution, laws, orders, or regulations affecting the trial. In light of the legislative amendment, even if the amended Criminal Procedure Act makes a decision of dissatisfactions due to ordinary complaints, the legislative purport of Article 405 of the amended Criminal Procedure Act, which provides for the method of filing an immediate appeal against such decision, as an immediate appeal within the period of the appellate court and the final appeal.

Rather, Article 415 of the Criminal Procedure Act provides that a suspension of execution should be recognized by applying Article 410 without exception to the decision of the appellate court or the high court without exception, may result in a violation of the current criminal procedure system. Article 97(3) of the former Criminal Procedure Act, which permits a prosecutor’s immediate appeal against the ruling of permission for release on bail until the judgment of the appellate court becomes final and conclusive, which permits the suspension of the execution of the said decision until the judgment of the appellate court on the immediate appeal becomes final and conclusive, decided as unconstitutional on the ground that the term “decision granting release on bail” in Article 97(3) of the former Criminal Procedure Act, which was amended by Act No. 5054, Dec. 29, 1995, violates the warrant principle, the due process principle, and the excessive prohibition principle (see Constitutional Court en banc Decision 93Hun-Ga2, Dec. 23, 1993). In accordance with such purport of the Constitutional Court’s decision of unconstitutionality, Article 97(3) of the amended Criminal Procedure Act deleted the said part.

C) The exclusion of the effect of suspension of execution cannot be deemed as going against the legislative intent of the provisions of the Criminal Procedure Act concerning the cancellation of release on bail, immediate appeal, and effect of suspension

Article 23 of the Criminal Procedure Act provides that an immediate appeal may be filed against a decision to dismiss an application for challenge, and even if an immediate appeal against a decision to dismiss a simplified application for the purpose of delaying a lawsuit is not recognized as having the effect of suspending the execution of a trial. In light of this, it is difficult to see that the issue of legislative policy to be determined in consideration of the need to temporarily suspend the effect of a decision so that the immediate appeal against a certain decision does not lose the meaning of objection by the appeal, and concerns about harm caused by the suspension of execution, and it is difficult to see the conclusion that

Article 102(2) of the Criminal Procedure Act provides that the suspension of the execution of a trial solely on the ground that the ruling of the high court, which is an immediate appeal, was made by which the ruling of the revocation of release on bail, may bring about a threat to the legislative intent of the above provision, as it may bring about the escape and destruction of evidence and harm to the victim, etc. of the defendant, which is the result of the ruling of the revocation of release on bail, to the exclusion of the said ruling. If it is necessary to suspend the execution after the ruling of the High Court on bail, and before the said ruling becomes final and conclusive, it may temporarily release the defendant through the suspension of the execution of detention under Article 101(1) of the Criminal Procedure Act, and thus

Ultimately, interpreting that the reappeal against the High Court's ruling on the revocation of release on bail excludes the effect of suspending execution cannot be deemed as contrary to the legislative intent of the provisions of the Criminal Procedure Act concerning the effect of immediate appeal and suspension

D) The exclusion of the effect of the suspension of execution cannot be deemed to be a reduced interpretation of the provision of procedural law regarding the restraint of human body to the disadvantage of the defendant.

The Criminal Procedure Act does not differ from the method of appeal against the ruling of permission for release on bail and the ruling of revocation on release on bail, and all appeals can be lodged with an ordinary appeal having no effect of suspending execution. This is based on the premise that, even though the ruling of revocation on release on bail is again limiting the physical freedom of the defendant who was released under the ruling of permission on release on bail, its execution should be uniformly suspended until the judgment becomes final and conclusive, not consistent with the principle of due process, non-detention, and presumption of innocence to be realized by the Constitution and the Criminal Procedure Act, and, on the contrary, even if the execution is not suspended, it does not go against the above principle. It is difficult to readily conclude that the interpretation that does not vary by instance at the time of the ruling of revocation on release on bail based on the same instance,

2) As above, even if the High Court’s ruling of revocation of bail cannot be deemed as suspending the execution of a trial within the period of reappeal, and it cannot be deemed that there is no ground under the Criminal Procedure Act that the prosecutor should notify the defendant that he/she may file an immediate appeal against the ruling of revocation of bail in executing the execution by the ruling of revocation of bail. Therefore, it is difficult to find

4. Conclusion

The petition of this case is dismissed as it is without merit.

Judges Kang Young-chul (Presiding Judge)