[1] Where the period for submitting the grounds of appeal and the last day of the period for submitting the grounds of appeal fall under a legal holiday or Saturday, whether such date is included in the period for submitting the grounds of appeal (negative)

[2] In a case where the defendant filed an appeal against the judgment of the court of first instance on July 27, 2020, and received the notification of the receipt of the trial record from the court below on August 18, 2020, and submitted the statement of reasons for appeal, and the court below did not appoint a state appointed defense counsel or appoint a private defense counsel, and the government designated the defendant as a temporary holiday on August 17, 2020 on a temporary holiday from July 27, 2020, the case holding that the defendant was on Sundays on August 16, 2020, which is the last day of the period for submitting the statement of reasons for appeal calculated from July 27, 2020, which is the date of receiving the notification of the receipt of the trial record, and on August 17, 2020, which is the next day, are not included in the above period as a temporary holiday, and thus, the defendant's grounds for appeal was legitimate within the period for appeal.

[1] According to Articles 361-2 and 361-3(1) of the Criminal Procedure Act, when the appellate court has received the record, it shall immediately notify the appellant and his/her counter-party, and when the counsel is appointed before such notification, the appellant or the defense counsel shall also notify the appellant, and the appellant or the defense counsel shall submit the statement of reasons for reasons within 20 days after such notification is received. In addition, according to Article 66(3) of the same Act, the last day of the period except for the period of prescription and detention falls on a legal holiday or Saturday shall not be included in the period for submitting the statement of reasons for reasons.

In such a case, whether the last day of a period is a public holiday shall be determined in accordance with each subparagraph of Article 2 of the Regulations on Holidays of Public Offices, which provides for “public holidays,” and temporary holidays, which are “any other date designated by the Government from time to time” under subparagraph 11 of the same Article, also constitute public holidays.

[2] In a case where the defendant filed an appeal against the judgment of the court of first instance on July 27, 2020, and received the notification of the receipt of the trial record from the court below on August 18, 2020, and submitted the statement of reasons for appeal, and the court below did not appoint a public defender or appoint a private defense counsel, and the government designated the temporary holiday on August 17, 2020 as a temporary holiday on July 27, 2020, the case holding that the court below dismissed the defendant's appeal lawful within the submission period of the appellate brief on August 16, 2020, which was calculated from July 27, 2020 to the end of the submission period for the appellate brief calculated from July 27, 2020 to which the defendant received the notification of the receipt of the trial record was a temporary holiday, and on August 17, 2020 as well as on August 18, 2020, on the ground that the above period was last day of the submission period.

[1] Articles 66(3), 361-2, and 361-3(1) of the Criminal Procedure Act; Article 2 subparag. 11 of the Regulations on Holidays of Public Offices / [2] Articles 66(3), 361-2, and 361-3(1) of the Criminal Procedure Act; Article 2 subparag. 11 of the Regulations on Holidays of Public Offices

[1] Supreme Court Decision 98Reda53 delivered on March 13, 1998 (Gong1998Sang, 1059) Supreme Court Order 2006Ma851 Delivered on June 12, 2008

Defendant

Defendant

Seoul Southern District Court Order 2020No1398 dated October 23, 2020

The order of the court below is reversed, and the case is remanded to the Seoul Southern District Court.

The grounds of reappeal are examined.

1. The court below can find out the fact that the court below dismissed the defendant's appeal on the grounds that the defendant did not submit a statement of grounds of appeal within the lawful period for submission, did not state the grounds of appeal in the petition of appeal, and that there was no ground

2. However, the lower judgment is difficult to accept for the following reasons.

A. According to Articles 361-2 and 361-3(1) of the Criminal Procedure Act, when the appellate court has received a record, it shall immediately notify the appellant and his/her other party, and when an attorney is appointed before this notification, the appellant or his/her counsel shall also be notified, and the appellant or his/her counsel shall submit the statement of reasons for reasons within 20 days after this notification is received. In addition, according to Article 66(3) of the same Act, the last day of the period except for the period of prescription and detention falls on a legal holiday or Saturday shall not be included in the period for submitting the statement of reasons for reasons.

In this case, whether the last day of the period falls on a legal holiday or not shall be determined according to whether it falls under any subparagraph of Article 2 of the Regulations on Holidays of Public Offices, and temporary holidays, which are “any other date designated by the Government from time to time” as prescribed by subparagraph 11 of the same Article, also fall on a legal holiday (see Supreme Court Order 98DaDa53, Mar. 13, 1998; Supreme Court Order 2006Ma851, Jun. 12, 2008; etc.). The Government designated the temporary holiday on August 17, 2020 as a legal holiday (see, e.g., Supreme Court Order 98DaDa53, Mar. 13, 1998; Supreme Court Order 2006Ma851, Jun. 12, 2020).

B. The record reveals the following: (a) the Defendant was sentenced to the first instance judgment on July 8, 2020, and filed an appeal on July 14, 2020; (b) was served with the notification of the receipt of the notification of the trial records from the lower court on July 27, 2020; and (c) filed the statement of grounds of appeal on August 18, 2020; and (d) the lower court appointed a state appointed defense counsel or appointed a private defense counsel by the Defendant.

Examining this in light of the aforementioned legal principles, the Defendant’s statement of grounds for appeal, which was calculated from July 27, 2020, as of August 16, 2020, which was the last day of the deadline for submitting the appellate brief calculated from July 27, 2020, and the next day of August 17, 2020, which is also a temporary holiday, is not included in the above period. Thus, the last day of the above period is the last day of August 18, 2020, and therefore, the Defendant’s statement of grounds for appeal, which was submitted on August 18, 2020, is judged to

C. Nevertheless, the lower court decided to dismiss the Defendant’s appeal without determining the grounds for appeal by deeming that the Defendant’s appellate brief was not lawfully submitted within the submission period. In so determining, the lower court erred by misapprehending the legal doctrine regarding the submission period of the appellate brief, thereby adversely affecting the conclusion of the judgment. The grounds for reappeal pointing this out are with merit.

3. Therefore, the order of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Tae-tae (Presiding Justice)