[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 copy of the above summary order was impossible to be served due to directors' uncertainty and served on the re-appellant as of December 14, 2002. The re-appellant submitted the above formal order after payment of the fine according to the above summary order on May 13, 2003 with the right to claim the formal trial of this case on October 21, 2003. Even if the family affairs were not aware of the fact that the summary order was served by service by service by public notice, the court below decided that the above request for formal trial of this case was rejected within 7 days after the date of the above request for formal order of this case and the above request for formal trial of this case was rejected pursuant to Article 45 and Paragraph 457 of the above.

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, this does not constitute an unlawful case that 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.

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)