Defendant

Law Firm Open Forest et al.

Defense Counsel

Seoul High Court Order 2019Hu18 dated February 19, 2020

The reappeal is dismissed.

The grounds of reappeal are examined.

1. As to the assertion that the matters related to the reappeal including the suspension of execution were not notified at the time the ruling on release on bail

(a) A decision on revocation of bail made by a high court may not recognize a suspension of execution. The reasons are as follows:

If a court of the first instance is dissatisfied with a ruling of revocation of bail, it may make an ordinary appeal (Articles 102(2), 402, and 403(2) of the Criminal Procedure Act), and a common appeal does not have the effect of suspending the execution of a judgment (Article 409 of the Criminal Procedure Act). This is to secure a defendant’s new illness who was released by recognizing executory power at the same time as the ruling is to promptly secure the defendant’s new illness who was released by recognizing executory power, and the purport of the ruling of revocation of bail differs depending on whether the said ruling was made in the first instance trial procedure

An immediate appeal is an appeal that can be filed only within a certain period for the prompt stability of legal relations or trial procedures, and the enforcement of a judgment is effective when the period for filing an immediate appeal and its filing is made (Article 410 of the Criminal Procedure Act). However, even in cases of an ordinary appeal, considering the fact that the suspension of execution can be suspended by the court’s decision (Article 409 of the Criminal Procedure Act), it cannot be deemed that the effect of suspending execution arises from the inherent nature of an immediate appeal.

Article 415 of the Criminal Procedure Act provides, “An immediate appeal may be filed with the Supreme Court only on the ground that there has been a violation of the Constitution, Acts, orders, or rules that affected the trial.” This is to restrict the grounds for reappeal, at the same time, to reduce the psychological burden of a reappeal and to ensure prompt stability in the appellate trial proceedings by prescribing the period allowed for reappeal within the period allowed for an immediate appeal. As such, Article 415 of the Criminal Procedure Act provides that a reappeal against the High Court’s decision as an immediate appeal may not be deemed to have the effect of suspending the execution of an immediate appeal, as a matter of course, on the ground that Article 415 of the Criminal Procedure Act provides that a reappeal against the High Court’s decision shall be deemed an immediate appeal. If the first instance court’s decision on the High Court’s decision, such as the permission of bail, suspension of detention, etc., uniformly recognizes the validity of the suspension of execution, this would result in unfair consequences, such as prompt release of the Defendant on

B. Article 324 of the Criminal Procedure Act, which provides a notice of matters concerning an appeal when a sentence is sentenced, provides that the defendant shall not be given an opportunity to exercise the right to appeal against the defendant. There is no such provision in relation to a reappeal, and there is no ground to view that the high court should notify the matters concerning a reappeal while notifying the decision to revoke the release on bail.

2. On the assertion that the defendant is not likely to flee

The lower court revoked the release on bail against the Defendant by deeming that the Defendant was likely to flee or destroy evidence constitutes a case where there are sufficient grounds to believe that the Defendant might flee or destroy evidence. In light of the record, even after examining the lower court’s order, the lower court did not err by violating the Constitution, statutes, orders, or rules that affected the judgment

3. Conclusion

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-hee (Presiding Justice)