Whether Article 354 of the Criminal Procedure Act prohibiting the waiver or withdrawal of an appeal is unconstitutional because it infringes on the constitutional right to a trial (negative)

In a case where a waiver or withdrawal of an appeal is made, the right to appeal cannot be again filed because the right to appeal is extinguished, and in a criminal procedure, legal stability and formal certainty are basically required. Thus, the revocation of the validity of an appeal, such as cancellation under the Civil Act, is not recognized in light of the principle of procedural maintenance. However, in a case where these characteristics are excessively emphasized, the Criminal Procedure Act has a provision that a person who withdraws or withdraws an appeal may not re-appeal the case (Article 354), while the Criminal Procedure Act has a provision that a person who withdraws or withdraws an appeal may not re-appeal the case (Article 354). Meanwhile, in a case where the waiver or withdrawal of an appeal does not exist or withdrawal of an appeal is null and void, the rules on criminal procedure open the way to file an appeal to the court (Article 154). Considering the above nature of the waiver or withdrawal of an appeal and the nature of procedural acts, and the existence or absence of procedural procedures and the method of remedy where it is null and void, it does not violate the Constitution as it infringes on the constitutional right to appeal under Article 354 of the Criminal Act.

Article 354 of the Criminal Procedure Act, Article 154 of the Regulation on Criminal Procedure, Article 27 of the Constitution

Applicant

Attorney Park Hong-hoon

The request for unconstitutionality review is dismissed.

The grounds for requesting an unconstitutionality review are examined.

Article 354 of the Criminal Procedure Act provides that "A person who has withdrawn an appeal or has consented to withdrawal or waiver of an appeal shall not make an appeal again against the case." In reality, there are cases where the waiver of an appeal is allowed due to the fact that the number of days of pre-trial detention may not be included in part of the days of pre-trial detention in the appellate court upon receiving a judgment from an appellate court after the appellate court rendered a final appeal from a correctional officer, etc., and that it is necessary for the defendants to receive a judgment from the Supreme Court to bring an error. Further, even if they waive an appeal, filing an appeal within the period of final appeal would not undermine the stability of the procedure, and thus, the provision of Article 354 of the Criminal Procedure Act that does not permit withdrawal or waiver of an appeal is excessively restrictive to the right to claim a trial guaranteed by the Constitution, and thus, the right to appeal cannot be re-appeal because it is extinguished, and as such, a person who waives the procedure of final appeal or withdraws an appeal may not have any effect beyond the bounds of legal justice and stability of the Criminal Procedure Act.

Therefore, the request for unconstitutionality is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-woo (Presiding Justice)