The case accepting a request for recovery of the right of appeal by the wife (the chief of the preceding central information department) who was unable to appeal due to the provision of Article 11(1) of the Act on Special Measures for the Punishment of Anti-State Offenders

The case accepting a request for recovery of the right of appeal on the ground that it was impossible to file an appeal due to the provision of Article 11(1) of the Act on Special Measures for the Punishment of Anti-State Offenders, which is essentially infringed upon due process principle guaranteed by the Constitution and the right to trial by completely restricting the appeal and completely blocking the request for recovery of right of appeal, since it was not possible to file an appeal due to the provision of Article 11(1) of the Act on Special Measures for the Punishment of Anti-State Offenders, while residing in the United States and staying in domestic newspapers and on the bulletin board

Article 345 of the Criminal Procedure Act, Articles 11(1) and 13(1) of the Act on Special Measures for the Punishment of Anti-State Offenders, Articles 12(1) and 27(1) of the Constitution

Constitutional Court Decision 90HunBa35 delivered on July 29, 1993 (HunGong3, 242)

Defendant

Appellant

Seoul Criminal District Court Order 90 seconds1918 dated October 23, 1990

The order of the court below is revoked.

The Seoul Criminal Court 82 High Court 1049 has restored the appellant's right to appeal against the defendant against the judgment on the violation of the Act on Special Measures for the Punishment of Anti-State Offenders.

The gist of the defendant's immediate appeal of this case is that the appellant who is the spouse of the defendant under Article 11 (1) of the Act on Special Measures for the Punishment of Anti-State Offenders could not file an appeal, but the above provision is unconstitutional and invalid. The above decision was made without the attendance of the defendant and the decision was announced to the court notice for seven days from the date the decision was rendered and the decision was announced to the court notice, and the above decision cannot be known at all, so the court below's decision was erroneous, despite the fact that the appellant did not file an appeal within the statutory period due to a cause not attributable

Therefore, Article 11(1) of the Act on Special Measures for the Punishment of Anti-State Offenders stipulates that an appeal may be filed only when the defendant is arrested or appears at will on behalf of the defendant, and Article 13(1) of the same Act excludes the application of Articles 345 through 348 of the Criminal Procedure Act concerning the request for recovery of right of appeal, but it is ultimately to restrict the defendant from lodging an appeal without being arrested or present at will, and to completely block the request for recovery of right of appeal, which is ultimately in essence deprived of his right of appeal, and thus, it is against the latter part of Article 12(1) of the Constitution ("........... It is no longer subject to punishment, security disposition or compulsory labor without lawful procedure."". It is fundamental violation of the right to request a trial by the defendant under the Constitution and Acts (".................." of this case's notice to the court below's ruling of 193Hun-Ba297, which is an action against the defendant.

Therefore, the appellant could not file an appeal due to the provision of Article 11(1) of the Act on Special Measures for the Punishment of Anti-State Offenders who are in violation of the Constitution and are null and void because of the defendant's spouse, and it seems that the appellant could not be aware of the result of the public notice of the summons of the defendant posted in the newspaper and the court bulletin board while residing in the United States of America and did not know the result of the judgment. Accordingly, if the defendant or appellant could not file an appeal within the statutory appeal period against the above judgment, it would be due

Therefore, the order of the court below that concluded otherwise shall be revoked by improper revocation, and since the appellant's claim for recovery of his right to appeal of this case is well-grounded, the appellant's right to appeal regarding the judgment of this case shall be recovered, and it is so decided as per Disposition under Articles 414 (2) and 345 of

Judges Lee Hong-do (Presiding Judge)