Whether to permit a reappeal against a decision made by the appellate court on an application for adjudication (negative)

[Majority Opinion] According to Article 262 of the Criminal Procedure Act, which applies mutatis mutandis to the ruling under Article 273(2) of the Act on the Election of Public Officials and the Prevention of Unlawful Election Act pursuant to Article 273(1), Article 262 of the same Act, which applies mutatis mutandis to the ruling of dismissal of an application for adjudication under Article 262(1) of the same Act or the ruling to be attached to the competent district court for trial, a reappeal may be made to undergo a final examination by the Supreme Court in order to undergo the final examination of the Supreme Court, in light of the purport of Article 107(2) of the Constitution and Article 415 of the Criminal Procedure Act, where there is a violation of the Constitution, Acts, subordinate statutes, orders, or regulations that affect the decision of dismissal of an application for adjudication. However, in a case where the ruling of dismissal of an application for adjudication under Article 262(1) of the Criminal Procedure Act was erroneous, the final decision of the Supreme Court may not be granted through the ruling of the original case before the trial.

[Dissenting Opinion] The Supreme Court Decision 415 of the Criminal Procedure Act that the re-appeal is granted pursuant to Article 415 of the same Act, as well as the decision to dismiss an application for adjudication by a high court, must be respected and maintained as it is, and that the re-appeal is not granted solely on the ground that the decision to be attached to the trial can be finally judged by the Supreme Court in the case of the merits, is against the purport of Article 27(3) of the Constitution of the Republic of Korea, the prompt claim for a trial under Article 372 of the Criminal Procedure Act, the non-permanent appeal system under Article 372 of the Criminal Procedure Act, and the Supreme Court en banc Decision 64Mo38

First, although the Supreme Court en banc Order 64Mo38 dated May 12, 1965 ruled that, in order to ensure the right to trial of citizens, a re-appeal under Article 415 of the Criminal Procedure Act may be made, and Article 262 (2) of the Criminal Procedure Act shall be deemed to be changed to the extent that it conflicts with Article 415 of the Criminal Procedure Act, to the extent that the right to trial of citizens is not a valid and appropriate remedy or it does not constitute abuse of authority, the Supreme Court en banc Order 64Mo38 Decided May 12, 1965 ruled that in order to ensure the right to trial of citizens, the right to trial of citizens shall be guaranteed to the maximum extent that it does not constitute a valid and appropriate remedy or abuse of authority.

Second, according to the majority opinion, if there is a violation of the Constitution or violation of the law in the decision of the High Court to refer the case to the trial, it will be in charge of the district court which will continue the decision of the primary legitimacy of the decision. This is against the nature of the court structure in that the district court which is the lower court judges whether the decision of the High Court is unlawful or not. It is against the purport of Article 27 (3) of the Constitution that guarantees the right to prompt trial of all citizens, especially the defendant, and it is against the purport of Article 27 (3) of the Constitution that guarantees the right to prompt trial of the court of first instance that has violated the law, and it is not appropriate to see as it is inconsistent with the structure of the Korean Criminal Procedure Act of the Republic of Korea, in which the first instance court where there is a violation of the law without filing an appeal against the judgment of the court of first instance which

Third, when an applicant for adjudication receives a disadvantageous decision (decision to dismiss an application for adjudication) on the ground that there is a violation of the Constitution and laws, etc., a reappeal may be made to the Supreme Court, and when the other party has received unfavorable decision (decision to refer to a trial) within the same trial procedure, even if there is a violation of the Constitution and laws, etc., it would result in treating the complainant and the suspect through the trial of the case on the merits of the defendant, and making it impossible to immediately re-appeal without any explicit legal basis, which would result in a discrimination, and in violation of the concept of fairness. Ultimately, it is clear that a decision to dismiss an application for adjudication under Article 262(1) of the Criminal Procedure Act or a decision to reject an application for adjudication is a decision to the High Court, and it is also clear that all the above decision to dismiss the application for adjudication or a decision to reject the application for adjudication under Article 262(1) of the Criminal Procedure Act and Article 262(2) of the same Act, which applies to all the decision to grant permission to a trial to the maximum extent possible, and basic position should be interpreted as it maintains all of Article 415 of the High Court.

Article 273 of the Act on the Election of Public Officials and the Prevention of Election Malpractice, Article 262 and Article 415 of the Criminal Procedure Act

Supreme Court en banc Order 64Mo38 dated May 12, 1965 (No. 13-1, 37), Supreme Court Order 67Mo19 dated February 27, 1967 (No. 5209), Supreme Court Order 67Mo38 dated July 13, 1967 (No. 5, 191), Supreme Court Order 68Mo45 dated October 8, 1968 (No. 6,158), Supreme Court Order 73Mo4 dated May 9, 1973 (No. 32, 613), Supreme Court Order 73Mo72 dated December 28, 197 (Gong1974, 7715) (No. 1968 Decided 106, Oct. 6, 198) (No. 1986)

Appellant 1 and 2 others

Attorney Kim Young-soo

Daegu High Court Order 96 seconds43 dated December 10, 1996

The reappeal is dismissed.

The grounds for reappeal are examined.

1. According to Article 262 of the Criminal Procedure Act, which applies mutatis mutandis to the ruling under Article 273 (1) of the Act on the Election of Public Officials and the Prevention of Election Unlawful Act pursuant to Article 273 (2) of the same Act, a complaint may not be filed pursuant to Article 262 (2) of the same Act with respect to the ruling to dismiss an application for a ruling under Article 262 (1) of the same Act or the ruling to be attached to a competent district court for a trial. However, in light of the purport of Article 107 (2) of the Constitution and Article 415 of the Criminal Procedure Act, a reappeal may be filed to undergo a final examination by the Supreme Court (see Supreme Court Order 67Mo38, Jul. 13, 1967; Supreme Court Order 68Mo45, Oct. 8, 196; Order 7Mo34, May 9, 197; Ordinance 27, Mar. 27, 1977).

However, in a case where there is an error in the decision to refer the case to the competent district court for a trial among the ruling under Article 262 (1) of the Criminal Procedure Act, it is open to the way to obtain the final decision of the Supreme Court through the decision itself of the case on the merits which was referred to the trial through the ruling. Thus, the reappeal under Article 415 of the Criminal Procedure Act as to the decision to refer to the district court for a trial among the ruling under Article 262 (1) of the same Act is not allowed, since the re-appeal under Article 262 (1) of the same Act does not infringe upon the right to receive the final decision of the Supreme Court as to the judgment, and thus, the re-appeal under Article 415 of the same Act shall not be permitted. In other words, the Supreme Court precedents (Supreme Court Order 67Mo19 Dated Feb. 27, 1967; 8Modo decided Oct. 19, 1985, etc.) purporting that the re-appeal under Article 415 of the same Act is allowed.

According to the reasoning of the court below's order, the court below dismissed the reappeal's reappeal's reappeal's reappeal's order against the decision of December 4, 1996 rendered by the court below which decided to refer the Re-Appellant to a trial for resident stay support at the Daegu District Court under Article 262 (1) of the same Act, on the premise that the reappeal's reappeal's reappeal's order against the High Court's decision of December 4, 1996 was in violation of the law, and there is no error in the misapprehension of legal principles as to Articles 415 and 262 of the same Act. The grounds for reappeal's appeal pointing this out are not acceptable.

Other reasons cited as the reasons for reappeal are that the lower court’s decision to refer to a trial on December 4, 1996 itself was erroneous, and it cannot be a legitimate reason for the lower court’s ruling dismissing the reappeal on the ground that the reappeal on the ruling to refer to a trial violated the legal method.

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all Justices who reviewed the reappeal except for a dissenting opinion by Justice Park Jong-chul.

2. Dissenting Opinion of Justice Park Jong-chul is as follows.

In the event that there is an error in the decision to refer a case to an adjudication among the financial decisions under Article 262(1) of the Criminal Procedure Act, such error may be the final decision of the Supreme Court through the judgment of the case on the merits, and thus, the reappeal under Article 415 of the same Act as to the decision to refer a case to an adjudication is not allowed, and no consent is obtained from the majority opinion

First, although the Supreme Court en banc Order 64Mo38 dated May 12, 1965 ruled that the re-appeal under Article 415 of the Criminal Procedure Act may be made to the extent that it conflicts with Article 415 of the Criminal Procedure Act, and Article 262 (2) of the same Act shall be deemed to be amended to the extent that it is inconsistent with Article 415 of the Criminal Procedure Act.

As the above 64Mo38 en banc Order takes place, people's right to trial should be guaranteed to the maximum extent as long as it is not a valid and appropriate remedy for rights and obligations or constitutes abuse of authority.

Second, according to the majority opinion, if there is a violation of the Constitution or violation of the law in the decision of the High Court to refer the case to the trial, it will be in charge of the district court which will continue the decision of the primary legitimacy of the decision. This is against the essence of the court structure in that the district court which is the lower court's decision is decided whether the decision is illegal or not. It is against the purport of Article 27 (3) of the Constitution that guarantees the right of prompt trial to all citizens, and it is against the purport of Article 27 (3) of the Constitution that guarantees the criminal defendant's right of prompt trial, and it is not appropriate to see any kind of non-permanent appeal system (Article 372 of the Criminal Procedure Act) which is specially established in the first instance court where there is a violation of the law without filing an appeal against the judgment of the first instance court which is in violation of the law in order to ensure

Third, when an applicant for adjudication receives a disadvantageous decision (decision to dismiss an application for adjudication) on the ground that there is a violation of the Constitution, law, etc., a reappeal may be filed with the Supreme Court, and when the other party has received a disadvantageous decision (decision to refer to a trial) within the same trial procedure, even if there is a violation of the Constitution, law, etc., the Supreme Court may appeal to the Supreme Court only bypass through the trial of the case on the merits of the defendant, and immediately re-appeal is not possible. This result in the treatment of the complainant and the suspect without any explicit legal basis.

Ultimately, it is clear that a ruling dismissing an application for adjudication under Article 262(1) of the Criminal Procedure Act or a ruling attached to a trial or both of the decisions of the High Court are the decisions, and the above Supreme Court en banc Order 64Mo38 Decided May 12, 1965, which applies to all the decisions of the Supreme Court en banc Order 64Mo38 Decided May 12, 1965, in order to ensure the right to trial of the people, is limited to Article 262(2) of the same Act which applies to all the decisions of the submission to the trial to the Supreme Court, so as not to conflict with Article 415 of the Criminal Procedure Act, so long as the above basic position is modified, it is consistent with the logic that all the reappeals can be re-appealed unless there are reasons such as the Constitutional Court's ruling

Therefore, the previous precedents (Supreme Court Order 67Mo19 delivered on February 27, 1967, Supreme Court Order 85Mo40 delivered on October 19, 1985, etc.) that a re-appeal is granted pursuant to Article 415 of the Criminal Procedure Act as to the decision to dismiss an application for a ruling of the High Court, as well as the decision to dismiss the application for a ruling of the High Court, should be respected and maintained as it is, and that no re-appeal is granted solely on the ground that the decision to be attached to the trial may be finally decided by the Supreme Court in the principal case, is against the purport of Article 27(3) of the Constitution of the Republic of Korea, Article 372 of the Criminal Procedure Act, Article 64Mo38 delivered on June 27, 1967, etc.).

1. The grounds of appeal are with merit. The grounds of appeal are with merit, and the grounds of appeal are with merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.