Quasi-appeal against the Prosecutor’s Disposition in 2020

[Supreme Court Decision 2020Do2094 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes]

Iso00(41****-);

Yongsan-gu Seoul Metropolitan Government

Yongsan-gu Seoul basic domicile

Defendant

Law Firm (LLC) LLC, Attorneys Song Pyeong-dae, Park Young-son, Lee Sang-son and Na-son

May 27, 2020

The instant petition is dismissed.

1. Details of the application of this case

A. Defendant was indicted for violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), etc. on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) in Seoul Central District Court 2018 Gohap185 and applied for permission of bail on July 18, 2018, and was released on the same day as the court in the first instance trial.

B. On November 13, 2018, the Defendant was sentenced to two years of imprisonment and three years of imprisonment and fine of KRW 100 million in the first instance court, but the decision of permission on bail was not revoked, and the Defendant appealed against the first instance judgment.

C. On January 22, 2020, the appellate court (Seoul High Court 20183341) reversed the judgment of the first instance on January 22, 202, and sentenced the Defendant to a fine of KRW 100 million, and notified the Defendant of the decision to revoke the release on bail ex officio in the court (hereinafter referred to as the "decision to revoke the release on bail") and issued a written notice of the decision to the prosecutor. The Defendant was dismissed in the detention house on the same day according to the Seoul High Prosecutors' Office Act*, the Seoul High Prosecutors' Office by the decision to revoke the release on bail*, the lawsuit*, the last****'s execution direction (hereinafter referred to as the "disposition in this case") by the above appellate court. The present case was pending in the appellate court (Supreme Court 2020Do2094) but the ruling to revoke the release on bail in this case became final and conclusive without objection, and the Defendant continues to be detained from January 22, 2020 to the present date.

E. On March 25, 2020, a defense counsel delegated by the Defendant filed the instant application seeking revocation on the ground that the instant disposition was erroneous.

2. Summary of reasons for the application;

According to Article 415 of the Criminal Procedure Act, a reappeal may be filed with the Supreme Court against the High Court. Since the said reappeal is an immediate appeal, the execution of the trial shall be suspended when the period for filing an immediate appeal under Article 410 is within the period for filing an immediate appeal. Since the decision to revoke release on bail of this case is a decision of the High Court, it cannot be executed immediately during the period for filing an appeal (seven days). Nevertheless, the prosecutor of this case directed the Defendant to execute the execution of detention during the period for suspending execution without notifying that the instant order may be immediately filed. Accordingly, the instant disposition is unlawful, and thus, the instant disposition should be revoked, and the status of illegal detention against the Defendant is pending due to the instant disposition.

There is a benefit to seek cancellation of the disposition.

3. Determination

A. According to Article 489 of the Criminal Procedure Act, a person against whom a trial was executed, or his/her legal representative or spouse may raise an objection to the court that pronounced the trial on the grounds that the disposition on bail is unreasonable. Such an objection is subject to a prosecutor’s full disposition on the execution of the trial pursuant to the provisions of the Criminal Procedure Act (see Supreme Court Order 2001Mo91, Aug. 23, 2001). Defendant asserted that the instant disposition constitutes “disposition on detention of a prosecutor” provided for in Article 417 of the Criminal Procedure Act and sought revocation thereof. However, according to Article 102(2) of the Criminal Procedure Act, Article 56 of the Regulation on Criminal Procedure and Article 56 of the Regulation on Criminal Procedure, if a ruling of revocation is issued, a prosecutor shall re-detained the Defendant by a certified copy of the decision of revocation, and thus, a prosecutor’s request for revocation under Article 98 of the Criminal Procedure Act concerning the execution of the judgment on bail constitutes an unlawful order of quasi-appeal under Article 98 of the Criminal Procedure Act.

B. Article 415 of the Criminal Procedure Act provides that "An immediate appeal may be filed with the Supreme Court only on the ground that there is a violation of the Constitution, Acts, subordinate statutes, orders, or rules that affected the trial with respect to the ruling of the appellate court or the appellate court" under the title of "re-appeal", and Article 410 provides that "the execution of a trial shall be suspended when an immediate appeal is made within the period for immediate appeal and its suspension is made," under the title of "the effect of the immediate appeal and the suspension of enforcement". In light of the reasons for the application, the issue about the legitimacy of the disposition of this case is that the ruling of the appellate court [including the ruling of the revocation of bail as an appellate court (see, e.g., Supreme Court Order 2002Mo6, Sept. 27, 2002; hereinafter the same shall apply], if it was made by a collegiate panel of the local court, an immediate appeal may be filed pursuant to Article 415 of the Criminal Procedure Act."

Although a reappeal against a ruling on the revocation of release on bail by the High Court is an immediate appeal within the period of filing as stipulated in Article 405 of the Criminal Procedure Act, notwithstanding the language and text of Article 415, it cannot be deemed that the said appeal has the validity of suspending execution as stipulated in Article 410 immediately in the above appeal. The reasons are as follows: (a) The time when the ruling on the revocation of release on bail becomes effective is the procedure for the appellate trial, and it is not different from other instances.

Article 102(2) of the Criminal Procedure Act provides that the court may cancel release on bail, either ex officio or upon request of a prosecutor, in cases where there is a good reason to believe that the defendant has fled (Article 102(2)1), when he/she has a good reason to believe that there is a concern that the defendant might flee or destroy evidence (Article 102(2)2), when he/she has not appeared without any justifiable reason after being summoned (Article 403(2)3), when he/she knows the facts necessary for the trial of the case in question, or when he/she has been summoned, or when he/she has been aware of the facts necessary for the trial of the case in question. If there is a good reason to believe that there is any reason (Article 403(2)4), when he/she has violated the conditions prescribed by the court (Article 5), and if he/she has an objection against the ruling on release under the Criminal Procedure Act, the court may cancel the release on bail, ex officio or upon request of the public prosecutor.

Such an ordinary appeal may be lodged at any time as far as there is an actual benefit to revoke the ruling on release on bail (Article 404 of the Criminal Procedure Act), and the enforcement of the ruling is not effective, and it is effective to suspend the enforcement until a ruling to suspend the enforcement of the ruling is made only when the original court or the appellate court has rendered a decision to suspend the enforcement (Article 409 of the Criminal Procedure Act). When a ruling to revoke release on bail is issued pursuant to Article 102(2) of the Criminal Procedure Act, the prosecutor shall re-hospitalize the accused upon the certified copy of the ruling to revoke the release on bail and the prosecutor may direct re-detained by the presiding judge, commissioned judge or entrusted judge (Article 56(1) of the Criminal Procedure Act).

The Supreme Court has confirmed that the ruling of cancellation of release on bail should be recognized even before the ruling becomes final and conclusive in accordance with the above provisions including the Criminal Procedure Act. Unlike the ruling of cancellation of release on bail, the ruling of cancellation of release on bail seems to be most cases requiring prompt execution due to its nature (Supreme Court en banc Order 2000Mo22 Decided May 29, 2001), and it was executed before the ruling of cancellation of release on bail is delivered to the defendant (or notification) by ex officio on the date of pronouncement of the judgment of the court below for reasons that there is concern about escape against the ruling of cancellation of release on bail on bail, the cancellation of the above ruling of release on bail can be immediately executed by issuing or delivering the ruling of cancellation to the prosecutor corresponding to the court of the ruling, and it cannot be seen that the ruling of cancellation of release on bail cannot be seen as being contrary to the law of criminal procedure that has been executed by the appellate court as soon as possible prior to the issuance of a copy of the ruling on bail on bail to the public prosecutor, and thus, it cannot be seen as unlawful.

Article 415 of the former Criminal Procedure Act, which was amended by Act No. 1500 on December 13, 1963, provides that an immediate appeal against the ruling by the appellate court or the high court may be filed in principle under the title of “Prohibition of reappeals and Special Appeal”: Provided, That only the decisions prescribed in each subparagraph of the same Article may be filed. The above decisions were mostly decisions that can be lodged as an immediate appeal under the former Criminal Procedure Act. Article 415 of the former Criminal Procedure Act, which was amended on December 13, 1963, provides that the entire ruling by the appellate court or the high court may be filed immediately with the Supreme Court under the title of “re-appeals” but only for reasons of violation of the Constitution, law, order or rule that affected the trial. In light of the legislative amendment, the purport of Article 15 of the amended Criminal Procedure Act, which provides for the method of filing an immediate appeal and re-appeal within the period of 0th of the appellate court or the high court’s final appeal, as well as the purport of the provision on the method of appeal and re-appeal.

Rather, if Article 415 of the Criminal Procedure Act provides that the validity of suspension of execution should be recognized by applying Article 410 without any exception to the decision of the appellate court or the high court, it may result in a violation of the current criminal litigation system. The Constitutional Court ruled that the "decision granting permission for release on bail" in Article 97 (3) of the former Criminal Procedure Act, which was amended by Act No. 5054 of Dec. 29, 1995, which was amended by Act No. 5054 of Dec. 3, 1995, which was amended by Act No. 5054 of Dec. 29, 1995, is inconsistent with the warrant requirement, due process, and the principle of excessive prohibition (the Constitutional Court Order No. 93Hun-Ga2, Dec. 23, 1993). According to the purport of the Constitutional Court's decision of unconstitutionality of Article 97 (3) of the amended Criminal Procedure Act, which was excluded from suspension of execution pursuant to Article 415 of the Criminal Procedure Act.

Article 23 of the Criminal Procedure Act provides that an immediate appeal may be filed against the decision to dismiss the motion for challenge, and in other words, it does not recognize the effect of suspending the execution of the trial at the time of a trial against the temporary decision to dismiss the motion for challenge, such as the apparent challenge for the purpose of delaying the lawsuit. In light of the above, it is difficult to see that the issue of legislative policy to determine the validity of the decision by taking into account the need to temporarily suspend the effect of the decision so that the validity of the immediate appeal against a certain decision is not lost, and concerns about harm caused by the suspension of execution, and it is difficult to see that it is logical and inevitable from the nature of the immediate appeal.

Article 102(2) of the Criminal Procedure Act provides that the suspension of the execution of a judgment by the High Court, which is an immediate appeal for the revocation of bail, is likely to disproving the legislative intent of the above provision, as the result of the escape, destruction of evidence, and the harm to the victim, etc. of the defendant, which is the result of setting the grounds for the revocation of release on bail under Article 102(2) of the Criminal Procedure Act, may be invalidated. If it is necessary to suspend the execution after the High Court rendered the revocation of release on bail and before the final and conclusive judgment, the execution may be temporarily released by the suspension of execution of detention under Article 101(1) of the Criminal Procedure Act, so there is no need to recognize the validity of suspension of execution as a matter of course in the reappeal against the revocation of release on bail.

Ultimately, interpreting that the reappeal against the ruling on the cancellation of the release on bail by the High Court is excluded from the validity of the suspension of execution without delay cannot be viewed as going against the legislative intent of the provisions of the Criminal Procedure Act concerning the effect of the appeal and the suspension of execution. The exclusion of the validity of the suspension of execution cannot be deemed to have reduced the provision of the procedural law regarding the restraint against the defendant.

The Criminal Procedure Act does not differ from the method of appeal against the ruling of permission for release on bail and the ruling of cancellation on bail, and provides that both parties can appeal against the suspension of execution without the validity of the suspension of execution. This is not consistent with the principle of due process, non-detention, and presumption of innocence to be implemented under the Constitution and Criminal Procedure Act, but rather with the premise that it does not go against the above principle even if the execution is not suspended by the Constitution and the Criminal Procedure Act. It is difficult to conclude that, even a ruling of cancellation on bail by the High Court cannot be seen as suspending the execution of a trial within the period of time, and that it is difficult to conclude that the interpretation that does not vary in the instance at the time of the enforcement of the ruling of cancellation on bail based on the grounds for cancellation on bail under the Criminal Procedure Act, which are equally provided by the preceding instance, is a reduction of interpretation against the spirit of the Criminal Procedure Act and the Criminal Procedure Act, which is disadvantageous to the defendant. Accordingly, it is difficult to deem that there is no ground to recognize that the defendant's immediate appeal against the ruling of cancellation on bail by the prosecutor.

4. Conclusion

The motion of this case is dismissed as it is without merit.

May 27, 2020

Judge Kang-young of the presiding judge

Judges Cho Jong-sung

Judges Lee Jae-ho