Whether it is possible to judge an appeal case before the deadline for appeal (negative) / Where the pleading has been closed within the deadline for submission of the grounds for appeal, and the grounds for appeal have been filed within the deadline for submission of the grounds for appeal, the measures to be

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 based on the appellate brief submitted by the defendant or his/her defense counsel within the statutory period, and even if the appellate brief has been already filed, the grounds for appeal may be added, changed, and withdrawn. Thus, the appellate court may not decide on the appellate case without waiting the expiration of the period for submitting the appellate brief. Accordingly, if the appellate brief was concluded within the period for submitting the appellate brief, and the appellate brief was submitted within the said period for submitting the appellate brief, the appellate court shall resume

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

Defendant

Defendant

Law Firm Bupyeongan, Attorney Ahn Dai-hee

Incheon District Court Decision 2014No2031, 4099 Decided January 9, 2015

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

The grounds of appeal are examined.

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 based on the appellate brief that the defendant or his defense counsel submitted within the statutory period, and even if the appellate brief has already been submitted, the reason for appeal may be added, changed, and withdrawn. Thus, the appellate court may not decide on the appellate case without waiting the expiration of the period for submitting the appellate brief (see Supreme Court Decisions 2004Do2611, Jun. 25, 2004; 2006Do8591, Jan. 25, 2007). Accordingly, if the appellate brief was closed within the period for submitting the appellate brief and the appellate brief was submitted within the said period for submitting the appellate brief, unless there are any special circumstances, the appellate court shall resume pleadings and review the argument in the grounds for appeal.

According to the records, (1) the defendant filed an appeal against the judgment on November 5, 2014, Incheon District Court Decision 2014Da3764, 4679, 597, and 6895, which was rendered on November 10, 2014; (2) the defendant filed an appeal to the above court on the grounds that the above appeal case (hereinafter referred to as "second case") was consolidated into the previous case (court 2014No2031) against the defendant; (3) the notice of receipt of court records on the second case was served on the defendant on December 8, 2014; and (4) the defendant, on the date open on December 10, 2014, stated that the grounds for appeal against the second case were unreasonable; (3) the court below rejected a request for the appointment of a private defense counsel and for resumption of agreement on the second case; and (4) the defendant filed an appeal to the court below on December 21, 2014, including a new private defense counsel.

Examining these facts in light of the legal principles as seen earlier, the Defendant’s period for submitting the grounds of appeal shall be from December 8, 2014 to December 29, 2014, which was within 20 days from the date on which the notice of receipt of the records of trial regarding the second case was served, and the Defendant’s period for submitting the grounds of appeal, which included a new argument, was filed within the said period after the closure of pleadings on December 10, 2014, should have resumed the pleadings, barring any special circumstances. Therefore, the lower court should have deliberated on the said assertion, barring special circumstances.

Nevertheless, the lower court, without going through such deliberation, declared a judgment without filing a final appeal, filed an appellate brief, revised or added by the deadline for submitting the appellate brief, and deprived the Defendant of the opportunity to receive a trial after holding a pleading. In so doing, the lower court erred by misapprehending the legal doctrine on the period for submitting the appellate brief and the period for submitting the appellate brief, and the resumption of oral argument, thereby adversely affecting the conclusion of the judgment. The

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment 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

Justices Jo Hee-de (Presiding Justice)