[1] The validity of the decision to recover the claim for formal trial which became final and conclusive without objection

[2] The case reversing the order of the court below that dismissed the claim for a formal trial without adjudication as to the merits on the ground that a final and conclusive decision to recover the claim for a formal trial is unreasonable

[1] Articles 347(2) and 458(1) of the Criminal Procedure Act / [2] Articles 347(2) and 458(1) of the Criminal Procedure Act

Defendant

Defendant

Seoul Eastern District Court Order 2004Ro10 dated August 20, 2004

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

1. According to the reasoning of the order of the court below, in the case No. 2002 high-level 13054 against the re-appellant, the court below issued a summary order ordering the re-appellant to a fine of 1,00,000 won on August 23, 2002. The transcript of the above summary order was impossible to be served due to director unknown and served on the re-appellant as of December 14, 2002. The re-appellant submitted the formal order of this case with the above summary order upon May 13, 2003 upon the payment of the fine under the above summary order and upon the request for recovery of the formal trial of this case on October 21, 2003, the court below acknowledged the facts that the above request for formal trial of this case was rejected after the lapse of 7 days from the date of the above summary order's request to recover the formal trial of this case. Thus, even if the re-appellant did not know the fact that the above request for formal order was rejected by service by public notice.

2. However, according to the records, the re-appellant's above claim for the formal trial as of October 21, 2002 was issued on November 3, 2003 by the Seoul District Court's Dong branch court's order 2003 early 879 on the re-appellant's claim for the formal trial as of November 3, 2003, and the prosecutor's failure to appeal it as an immediate appeal and the above decision became final and conclusive as it is. Thus, the decision for the recovery of the right to request formal trial can be appealed only by an immediate appeal as stipulated in Articles 458 (1) and 347 (2) of the Criminal Procedure Act, and the validity of the decision for the recovery of the right to request formal trial without such objection can no longer be asserted. Thus, even if the decision for the recovery of the right to request formal trial is unfair, if the decision becomes final and conclusive, the court handling the formal trial shall conduct the ordinary procedure without any need to examine whether the right to request formal trial has been filed within a legitimate period or whether the reason for recovery exists.

Nevertheless, the court below rejected the request for the formal trial of this case without adjudication on the merits, on the ground that the re-appellant's request for the formal trial and the request for the formal trial have been filed with the lapse of the deadline for request. Thus, it cannot be seen as an unlawful case which affected the conclusion of the judgment by misapprehending the legal principles on the validity of the final decision for the recovery of claim for formal trial, which affected the conclusion of the judgment.

3. Therefore, without further proceeding to decide on the grounds of reappeal, 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 Park Jae-chul (Presiding Justice)