Whether the appellate case may be tried before the deadline for filing the appellate brief (negative) / Where the appellate brief is not timely filed within the deadline for filing the appellate brief, whether the appellate court shall review the grounds for appeal by resumption of pleadings (affirmative in principle)

Articles 361-3 and 364 of the Criminal Procedure Act

Supreme Court Decision 2004Do2611 Decided June 25, 2004 (Gong2004Ha, 1295), Supreme Court Decision 2006Do8591 Decided January 25, 2007, Supreme Court Decision 2015Do1466 Decided April 9, 2015 (Gong2015Sang, 713), Supreme Court Decision 2017Do13748 Decided April 12, 2018 (Gong2018Sang, 939)

Defendant

Defendant

Attorney Lee Dong-hoon

Seoul Southern District Court Decision 2018No141, 799 decided July 19, 2018

The judgment below is reversed, and the case is remanded to Seoul Southern District Court Panel Division.

Judgment ex officio is made.

1. According to the provisions of Articles 361-3 and 364 of the Criminal Procedure Act, the appellate court’s structure is to be tried by the appellate court on the basis of the statement of reasons for appeal submitted within the statutory period. Even if the appellate brief has already been filed, the grounds for appeal may be added, changed, and withdrawn. Thus, the appellate case cannot be tried without waiting the expiration of the period for submitting the statement of reasons for appeal (see, e.g., Supreme Court Decisions 2004Do2611, Jun. 25, 2004; 2006Do8591, Jan. 25, 2007). Accordingly, if the appellate court, within the period for submitting the statement of reasons for appeal, filed the appellate brief within the said period for submitting the statement of reasons for appeal, barring any special circumstance, has to resume pleadings and review the grounds for appeal (see, e.g., Supreme Court Decisions 2015Do14666, Apr. 9, 2015; 2018Do37417

2. A. The record reveals the following facts.

1) On January 10, 2018, the Defendant filed an appeal against the Seoul Southern District Court Decision 2017Da5169 Decided January 10, 2018, pursuant to the above court 2018No141, and the lower court proceeded with the trial of the above appeal case (hereinafter “first case”).

2) On April 25, 2018, the Defendant filed an appeal against the Seoul Southern District Court Decision 2018Da1105 Decided April 25, 2018, pursuant to the above court’s 2018No799. The lower court served a notice of receipt of the records of trial regarding the above appeal case (hereinafter “instant case”) and served the Defendant on May 23, 2018.

3) On May 23, 2018, the Defendant’s state appointed defense counsel filed an appeal on the grounds of appeal on the grounds of unfair sentencing as to the second case on May 23, 2018. On May 24, 2018, the lower court consolidated the second case into the first case against the Defendant on the date open on May 24, 2018, and the Defendant and the state appointed defense counsel stated the grounds of appeal on the second case on the said date as unfair sentencing. Upon closing the pleadings, the lower court designated the date of sentence as

4) On May 28, 2018, the Defendant submitted a written statement of the title “Immunition and rebuttal” to the Defendant. The document included a new argument in the purport of disputing the illegality of litigation procedures, other than the content that the presiding judge could not understand the case on the date of trial because the Defendant applied for perusal and duplication of the case No. 2 and the trial records of the first instance court, which were rejected by the full bench, failed to properly grasp the contents of the case.

5) The lower court rendered a judgment on July 19, 2018, by delaying the date of original designation.

B. In light of the aforementioned legal principles, we examine whether the judgment of the court below was erroneous.

In this case, the period for submitting the statement of grounds for appeal against the second case by the Defendant is up to June 12, 2018, which is within 20 days from May 23, 2018, on which the notice of receipt of the records of trial was served. The Defendant and the public defender stated that the grounds for final appeal was an unreasonable sentencing on the date of May 24, 2018, and the immediate argument was concluded. However, the Defendant submitted a document disputing the illegality of the legal proceedings on May 28, 2018, which is within the period for submitting the statement of grounds for appeal. The content of the above document constitutes substantial grounds for appeal, and thus, it can be deemed that a new ground for appeal was duly added to the said scope. However, it is difficult to view that the examination of the additional grounds for appeal has been completed, barring any special circumstances, the lower court should have reviewed the grounds for further

Nevertheless, the lower court sentenced the Defendant to a judgment without going through the procedure such as providing the Defendant with an opportunity to state his/her opinion by opening a trial date after the submission of the Defendant’s “written application, written statement of grounds for appeal,” and deprived the Defendant of an opportunity to state his/her opinion after submitting a statement of grounds for appeal and holding oral proceedings. In so doing, the lower court erred by misapprehending the legal doctrine on the period to submit and resume the statement of grounds for

3. Therefore, without further proceeding to decide on the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)