Whether there exists any benefit from appeal against the judgment dismissing public prosecution

The essence of an appeal for a defendant is to correct a judgment disadvantageous to the defendant and request a judgment favorable to him/her, so the defendant shall not have the right to appeal against it unless the judgment is disadvantageous to him/her. In the event of a judgment dismissing a public prosecution, the defendant shall return to the state without institution of the public prosecution and goes beyond the risk of conviction, and such judgment shall not be deemed disadvantageous to the defendant

Articles 327 and 338 of the Criminal Procedure Act

Supreme Court Decision 82Do3076 Delivered on December 13, 1983

Defendant

Defendant

Attorney Kim J-jin

Seoul High Court Decision 87No189 delivered on April 2, 1987

The appeal is dismissed.

The gist of the grounds of appeal by the Defendant and the Defendant’s defense counsel is that the lower court’s decision of dismissing the public prosecution without having any evidence to acknowledge the facts charged in the instant case.

The essence of appeal for the defendant is to correct the judgment disadvantageous to the defendant and request a judgment favorable to him/her. Thus, unless the judgment is disadvantageous to him/her, the defendant shall not have the right to appeal against it. If there is a judgment dismissing a public prosecution, the defendant shall return to the state where the public prosecution was not instituted, and the judgment shall not be deemed disadvantageous to the defendant (see, e.g., Supreme Court Decision 82Do3076, Dec. 13, 1983).

Therefore, the Defendant’s appeal against the judgment dismissing the public prosecution by the lower court is unlawful, and it is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jin-Post (Presiding Justice)