2. Appeal against the ruling dismissing the preservation of evidence

The court referred to in Article 402 of the Criminal Procedure Act, which provides that a person who is dissatisfied with the decision of the court, refers only to the court which has accepted the lawsuit under the Criminal Procedure Act, and thus, cannot appeal against the decision of the judge who dismissed the request for preservation of evidence by the method of appeal as provided in Article 402 of the above Act, and further, the judge is not the presiding judge or the commissioned judge as the court of lawsuit, and thus, the judgment that the judge made is not subject to quasi-appeal as provided in Article 416 of the above Act, and the judgment on Article 403 of the same Act is not subject to its application. Accordingly, the decision to dismiss the request for preservation of

Articles 402 and 184 of the Criminal Procedure Act

Re-appellant

Attorney Cho Jong-soo, Attorneys Cho Jong-soo, Attorneys Lee Jae-soo

Seoul Criminal Court Order 12 June 12, 1986, 86Ro7

The reappeal is dismissed.

We examine the grounds for reappeal.

Article 402 of the Criminal Procedure Act provides that a person who is dissatisfied with the court's decision may file an appeal, which refers to only the court of the lawsuit under the Criminal Procedure Act.

This is because the appeal system is not only the appeal procedure against the decision or order of the court of the lawsuit, but also the term of the court under the Criminal Procedure Act is used in the provisions on the review of legality of detention and the ruling, but also the term of the court can not appeal against the decision. In addition, the term of the judge is used in each provision on the warrant of detention, seizure, search, inspection warrant, preservation of evidence at the stage of investigation, and examination of witness before the date of the first trial, but the judge at that time refers to a judge as an independent trial institution (a judge in the lecture, case acceptance), so if the court or the judge is excluded, only the court of the lawsuit

Therefore, the judge in receipt of a claim for preservation of evidence under Article 184 (2) of the same Act, where the arguments are pointed out, provides that the judge has the same authority as the court or the presiding judge with respect to the disposition, shall accept the request for preservation of evidence, and the relevant provision shall apply mutatis mutandis to the case where the court or the presiding judge, as the court or the presiding judge, takes the same disposition in the execution of seizure, search, inspection, examination of witness or appraisal as provided in paragraph (1) of the same Article, and it cannot be viewed as the court or the presiding judge in receipt of such request as above.

Therefore, a judge's decision dismissing a request for preservation of evidence shall be deemed as not being dissatisfied with the method of appeal under Article 402 of the Criminal Procedure Act.

Furthermore, since the judge is not the presiding judge or a commissioned judge of the court of lawsuit, it shall not be subject to quasi-appeal as stipulated in Article 416 of the Criminal Procedure Act, and an appeal against the litigation procedures prior to the judgment under Article 403 of the same Act shall not be applied to the judgment on the claim for preservation of evidence without any grounds for filing an immediate appeal.

In this regard, the decision of dismissal of a request for preservation of evidence reaches the conclusion that no appeal may be made in any way under the Criminal Procedure Act.

Therefore, the order of the court below is just in its result, and the reappeal of this case is without merit, and it is dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Byung-su (Presiding Justice)