[1] The validity of the service of a decision to dismiss the re- capital reduction, where the service of the decision to dismiss the re-capital reduction was not made to the head of the correctional institution

[2] In a case where the court of first instance served a dismissal ruling on the re-appellant and served it to the head of a detention house, the case holding that the court below's dismissal of an immediate appeal based on the date when a certified copy of the ruling was received was unlawful

[1] Service on a person arrested, detained, or detained in a detention room of a correctional institution, detention house, or national police station is ordered to be effected by the head of a prison, detention house, or national police station. Therefore, if the service of a decision of dismissal to review the capital reduction was not made to the head of a correctional institution, etc., the service is unlawful and null and void. As long as the service of a decision of dismissal to review is illegal as the initial date of the period for filing an immediate appeal is determined, the service is still invalid

[2] In a case where the court of first instance served a dismissal ruling on the re-appellant and served him again to the head of a detention house, the case holding that the court below's dismissal order of the re-appellant's immediate appeal calculated by calculating the period of immediate appeal based on the date of receipt of a certified copy of the decision on re-appellant's immediate appeal is unlawful for serving the above decision on the re-appellant who is not the head of a detention house, and its service becomes effective only when the service was served on the person who was not the head of the detention house and

[1] Article 65 of the Criminal Procedure Act, Article 182 of the Civil Procedure Act / [2] Articles 405, 435, and 437 of the Criminal Procedure Act

[1] Supreme Court Order 95Mo14 dated June 14, 1995 (Gong1995Ha, 2667)

Defendant

Defendant

Seoul High Court Order 2008Ro10 dated June 4, 2008

The order of the court below is reversed, and the case is remanded to Seoul High Court.

Judgment ex officio is made.

Service to be effected on a person arrested, detained, or detained in the detention room of a correctional institution, detention house, or national police station is to be effected by the head of a prison, detention house, or national police station (Article 65 of the Criminal Procedure Act, Article 182 of the Civil Procedure Act), and if the service of a decision to dismiss the review on the capital reduction is not to be effected by the head of a correctional institution, etc., the service is unlawful and null and void, and as long as the service itself, which sets the initial date of the filing period for an immediate appeal, becomes illegal, even if the defendant, who is the capital reduction, was informed of the fact that the decision to dismiss the retrial was notified by another method, is still invalid (

According to the records, the court of first instance stated the decision of dismissal of the retrial of this case (hereinafter "the decision of this case") as "the defendant," which was served by the court of first instance to the defendant in Seoul detention center, and the employee of Seoul detention center received the copy of the decision of this case on February 28, 2008 and delivered it to the re-appellant on the same day. The court of first instance stated the person to be served again as "Seoul detention center" and served the decision of this case on March 18, 2008. The re-appellant filed an immediate appeal against the decision of this case on March 21, 2008. In light of the above legal principles, it is inappropriate for the court of first instance to serve the re-appellant with the delivery of the person to be served by the court of first instance to the re-appellant who is not the head of the detention center, and as long as the service of this case was illegal as the date of commencement of the period of second appeal was delivered directly by the re-appellant, the order of this case's immediate appeal still becomes effective within 308 days.

Therefore, the court below's dismissal of the immediate appeal of the re-appellant on the premise that the service effect of the decision of this case against the re-appellant was occurred on February 28, 2008, is erroneous in the misapprehension of legal principles as to service of the re-appellant, which affected the judgment.

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 Park Si-hwan (Presiding Justice)