[1] Where an appellant or his/her defense counsel submitted the statement of grounds for appeal within the statutory period, but failed to specify the grounds for appeal specifically, whether the appeal may be dismissed by decision pursuant to Article 361-4(1) of the Criminal Procedure Act (negative)

[2] The measures to be taken by the appellate court where the appellant filed an appeal and the appellate court stated it abstractly, since the appellate court's judgment "in the statement of grounds for appeal" is a judgment that prevents the appellant from receiving the appeal

[1] Article 361-4(1) of the Criminal Procedure Act provides that when an appellant or defense counsel fails to file an appellate brief within the period under Article 361-3(1) of the Act, an appeal shall be dismissed by decision, except where the grounds for ex officio examination exist or the grounds for appeal are specified in the petition of appeal. Thus, even if the appellant or defense counsel stated that the first instance judgment is abstractly unfair in the statement of appeal, and does not specify the grounds for appeal specifically, if the appellate brief is not lawfully filed within the statutory period, it shall not be dismissed by decision pursuant to Article 361-4(1) of the Criminal Procedure Act, considering that the appellate brief is not filed within the statutory period.

[2] At the same time, the Criminal Procedure Act strictly limits the grounds of appeal, while citing facts expressed in the records of trial and in the examination of evidence by the court of original judgment, the grounds of appeal are not stipulated as to the grounds of appeal, and in principle, the court of final appeal does not ex post facto review as a court of final appeal. On the other hand, in light of the fact that the appellate court's ex post facto review is in the appellate court, and the appellate court stated that "the appellate court's judgment on the appellate brief is remarkably unreasonable," and thus, stated that "the appellate court made an appeal" in the appellate brief, the appellate court shall review the grounds of appeal on the grounds of appeal, stating that there is a mistake of facts in the judgment of the court of first instance or an error of unfair sentencing."

[1] Articles 361-3(1) and 361-4(1) of the Criminal Procedure Act / [2] Articles 361-5 subparag. 14 and 15, 379(2), and 383 of the Criminal Procedure Act

[2] Supreme Court Decision 82Do2829, 82Ga612 decided Apr. 26, 1983 (Gong1983, 926)

Defendant 1 and one other

Daejeon District Court Order 2001No2942 dated August 23, 2002

The order of the court below is reversed, and the case is remanded to Daejeon District Court Panel Division.

Judgment ex officio is made.

The court below decided to dismiss all defendants' appeals by applying Articles 361-4(1) and 361-3(1) of the Criminal Procedure Act, on the ground that the defendants' submission of the appellate brief stating that "the appellate brief has been filed because the court below's judgment on the above case was remarkably able to be accepted within the period for submitting the appellate brief," and that the defendants' submission of the appellate brief stating that "the grounds for appeal have been specified in the appellate brief," and that the defendants' submission of the appellate brief does not constitute legitimate grounds for appeal, even if examining the judgment of the court of first instance, on the ground that there is no ground for ex officio examination that might affect the judgment.

However, Article 361-4(1) of the Criminal Procedure Act provides that when an appellant or defense counsel fails to file an appellate brief within the period under Article 361-3(1) of the Act, the appeal shall be dismissed by decision, except where the grounds for ex officio examination exist or the grounds for appeal are stated in the petition of appeal. Thus, even if the appellant or defense counsel stated the appellate brief abstractly in the appellate brief that the judgment of the first instance is unjustifiable, and it does not specify the grounds for appeal specifically, if the appellate brief is lawfully filed within the statutory period, it shall not be dismissed by decision pursuant to Article 361-4(1) of the Criminal Procedure Act, considering that the appellate brief is not filed within the statutory period.

In addition, the Criminal Procedure Act strictly limits the grounds for appeal, while citing facts expressed in the records of trial and in the examination of evidence by the court of original judgment, does not provide for the grounds for appeal, and in principle, the court of final appeal ex post facto review as a court of final appeal. In light of the fact that the nature of ex post facto review lies in the appellate brief, the court of final appeal stated that the judgment of the court below on the above case was "I have to file an appeal" in the appellate brief, but the court below should have tried the grounds for appeal on the grounds that there was a mistake of facts in the judgment of the court of first instance or an error of unfair sentencing.

Unlike this opinion, the order of the court below that dismissed all appeals by the Defendants on the premise that the Defendants did not lawfully state the grounds for appeal in the appellate brief, and that the court below erred by misapprehending the legal principles as to the entry of the appellate brief and the grounds for appeal in the appellate brief or as to Article 361-4 (1) of the Criminal Procedure Act, and thereby adversely affected the conclusion of the judgment, since the court below erred by misapprehending the legal principles as to the entry of the appellate brief and the grounds for appeal in the appellate brief or the legal principles as to Article 361-4 (1) of the Criminal Procedure Act, since the court below's order shall be reversed, where the grounds for

Therefore, the order of the court below shall be reversed, and the case shall be remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Shin Shin-chul (Presiding Justice)