Whether Article 344(1) of the Criminal Procedure Act, which provides for the special rule for prisoners in filing an appeal for the submission of an appeal shall apply mutatis mutandis to the submission of an appeal for formal trial (affirmative)

The special rule of the Criminal Procedure Act provides for the exception of the principle of arrival of a court for prisoners in prison or detention house and the purpose of recognizing the exception of the principle of appeal for prisoners in prison or detention house is to provide convenience in filing an appeal for prisoners in consideration of the fact that the act of prisoners in prison or detention house and deprived of their freedom of action in order to undergo a trial for the appellate court is an ordinary method to submit a written appeal to the person in charge of the prison, etc. under confinement or acting person and deliver the written appeal to the relevant court for official duties. Upon receipt of the summary order, the defendant who is notified of the summary order must submit a legitimate written request for formal trial in order to undergo a trial in an open court for a trial in accordance with the formal trial procedure. Thus, if a request for formal trial is dismissed only because it was delivered to the court after the lapse of the period even after submitting a written request for formal trial to the head of prison or detention house, it is deprived of the opportunity to receive a formal trial in the open court for the best person, thereby infringing the right to appeal and infringing the right to disclosure of the criminal procedure.

Articles 344(1), 355, 453, and 458(1) of the Criminal Procedure Act; Article 27(3) of the Constitution

Supreme Court en banc Decision 2005Do9729 Decided March 16, 2006 (Gong2006Sang, 702)

Re-appellant

Seoul Eastern District Court Order 2005Ro38 dated September 30, 2005

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

The grounds of reappeal are examined.

1. On July 25, 2005, the copy of the summary order of this case served with the Director of Seongdong-gu District Court at the time when the re-appellant was under custody, and the re-appellant submitted the request for formal trial on August 29, 2005, and acknowledged that the above request for formal trial reached the Seoul East East District Court at the time of August 3, 2005, and even if the request for formal trial was submitted to the detention house within the deadline for submitting the request for formal trial, the court below rejected the request for formal trial because it was not due to the re-appellant's responsibility. In the case of the request for formal trial against the summary order, there is no special provision like Article 344 (1) of the Criminal Procedure Act concerning the petition for formal trial, and even if the defendant submitted the request for formal trial within the above period or to the person acting for the head of the prison or detention house or its formal trial within the above period, the request for formal trial of this case cannot be deemed to be unlawful for the reason that the request for formal trial of this case was dismissed within the above period.

2. However, we cannot accept the above measures of the court below.

The latter part of Article 27(3) of the Constitution provides that "a criminal defendant shall have the right to a public trial without delay unless there is a good reason," and declares that the right to a public trial is fundamental human rights of the criminal defendant. The Criminal Procedure Act has a provision on summary procedures so that the criminal defendant may be punished by a fine, minor fine or confiscation by a summary order without the trial, but Article 453(1) provides that "the prosecutor or the criminal defendant may request formal trial within seven days from the date on which he/she is notified of the summary order: Provided, That the criminal defendant shall not waive his/her right to a public trial, which is guaranteed by the Constitution, so that the right to a public trial of the criminal defendant cannot be infringed."

Meanwhile, Article 344(1) of the Criminal Procedure Act provides for a special rule for the so-called "when a defendant in a prison or detention house has submitted a written appeal to the head of the prison or detention house or his/her deputy within the period for filing an appeal, he/she shall be deemed to have lodged an appeal within the period for filing an appeal." However, the above special rule does not provide for the submission of a written application for formal trial (Articles 355, 430) and there is no provision for the above special rule.

However, the special rule of the Criminal Procedure Act provides for the exception of the principle of arrival of a court for prisoners in prison or detention house, and the purpose of recognizing the exception of the principle of appeal for prisoners in prison or detention house is to provide convenience in filing an appeal for prisoners in consideration of the fact that it is normal for them to submit a written appeal to the person in charge of the prison or detention house under confinement or acting for them to deliver the written appeal to the relevant court in the course of performing their duties. Upon receipt of the summary order, the defendant who is notified of the summary order must submit a written request for a lawful formal trial in order to undergo a trial according to the formal trial procedure in open court. Thus, if a request for a formal trial is dismissed on the sole ground that it was delivered to the court after the lapse of the period despite the submission of a written request for formal trial, it is reasonable to deprive them of the opportunity to recover the right to receive a formal trial in open court, thereby infringing on the right to receive the right to disclosure and infringing on the right to substantive truth of the Criminal Procedure Act.

According to the above legal principles and facts, the application for the formal trial of this case submitted by the re-appellant to a correctional officer in Seongdong-gu Office who was at the time during the period for submitting the application for the formal trial is legitimate, and the court below maintained the decision of the court of first instance that dismissed the request for the formal trial of this case on the ground that the application for the formal trial of this case was made after the expiration of the right to request the formal trial of this case, and the court below erred in the misapprehension of legal principles as to the special rule of prisoners, and such illegality affected the judgment

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 Kim Yong-dam (Presiding Justice)