Where an appeal has been filed with an appellate court, which is a jurisdictional court for retrial, in regard to the dismissal of the request for retrial even though the first instance court has transferred the case to the appellate court which is a jurisdictional court for retrial, the measures to be taken

In a case where a request for retrial was erroneously filed to a court of first instance, which is not the appellate court, which is not the appellate court having jurisdiction over review, the first instance court shall not dismiss the request for retrial on account of its illegality, but shall transfer it to an appellate court which is the appellate court which has jurisdiction over review. If the first instance court rejects the request for retrial instead of the decision to transfer it to the appellate court, and if an appeal is filed against this, the appellate court which has received the appeal shall, by applying Article 367 of the Criminal Procedure Act, reverse the decision of the first instance court without jurisdiction,

Article 367 of the Criminal Procedure Act

Supreme Court en banc Order 82Mo52 Decided January 22, 1983 (Gong1983, 611) Supreme Court Decision 83Meu1981 Decided February 28, 1984 (Gong1984, 589)

Re-appellant

Jeonju District Court Order 2002Ro32 dated October 29, 2002

The order of the court below is reversed, and the case is remanded to Jeonju District Court Panel Division.

The grounds for reappeal are examined ex officio prior to the judgment.

In a case where a request for retrial was filed by mistake in the first instance court, which is not the appellate court which is not the appellate court which is not the appellate court which has jurisdiction for retrial, the first instance court shall not dismiss the lawsuit for retrial on account of its illegality, but shall transfer it to the appellate court which is the appellate court which has jurisdiction for retrial (see Supreme Court en banc Decision 83Meu1981, Feb. 28, 1984). In a case where the first instance court makes a decision to dismiss the request for retrial in lieu of the decision to transfer it to the appellate court, and where an appeal is filed by the appellate court which is the appellate court which has jurisdiction for retrial, the court which has received the appeal shall reverse the decision of the first instance court without jurisdiction and take the procedure as the appellate court for retrial (see Supreme Court Order 82Mo52, Jan. 22

According to the records, the first instance court sentenced the Re-Appellant on March 19, 2001. The appellate court reversed the judgment of the first instance on September 6 of the same year and sentenced the Re-Appellant to 10 months of imprisonment. The judgment of the appellate court became final and conclusive as it is by the judgment of the Supreme Court, and the Re-Appellant submitted the written request for retrial to the first instance court without clearly stating what the judgment of the second instance was the subject of retrial while the Re-Appellant asserted that there was a ground for retrial in the above judgment of the second instance which became final and conclusive on the grounds of the request for retrial of this case, and the first instance court dismissed the Re-Appellant's request for retrial of this case on the ground that the Re-Appellant was erroneous in the manner that the Re-Appellant was erroneous in the judgment of the first instance which was already reversed by the judgment of the above appellate court and that the Re

In light of the Re-Appellant's intent indicated in the record, it can be sufficiently recognized that the Re-Appellant's subject matter of review is the above appellate judgment, and therefore, the legal ground for retrial is the court that rendered the judgment subject to review, which has jurisdiction over the first instance court, should reverse the first instance court's decision in accordance with the above legal principles, and take the procedure as the competent court for review. However, the court below's decision was just to determine the legitimacy of the first instance court's decision and dismiss the Re-Appellant's appeal. Thus, it is erroneous in the misapprehension of the legal principles as to the measures to be taken by the court for

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 Cho Cho-Un (Presiding Justice)