Whether the prosecutor's written opinion on the motion for permission for release on bail, stating "no reason to request release on bail exists since it was directed by the prosecutor's office to waive the motion for permission for release on bail" can be seen as

The form of a document concerning the waiver or withdrawal of an appeal is a procedural act against the court by the appellant who has the right to waive or withdraw the appeal, so that the appellant has the right to waive or withdraw the appeal to the court. Therefore, if the written opinion on the permission for release on bail contains an opinion that the request for release on bail is groundless, and the prosecutor has added the fact that he/she has decided to waive the appeal on his/her internal basis, it shall not be deemed as a written document stating his/her intention to waive the appeal to the court "the grounds for the request for release on bail are without merit in this case."

Article 352 of the Criminal Procedure Act

Defendant

Prosecutor

Attorney Noh Byung-hee and Kim Jong-hee

Seoul High Court Decision 83No1619 delivered on October 19, 1983

Supreme Court Decision 83Do771 Delivered on June 14, 1983

The appeal is dismissed.

1. Prior to the judgment on the grounds of appeal, we first examine the validity of the appeal filed by the prosecutor.

According to the records, after the judgment of innocence was rendered by the court below, the defendant's request for permission for release on bail was made, and the court below requested the prosecutor's opinion in writing, and the prosecutor stated his opinion on October 20, 1983 in writing that "the defendant's request for release on bail was without merit" and received the document to the court below on October 24, 1983. The petition of appeal in this case is clearly accepted by the court below on October 26, 1983, as the defense counsel pointed out in the defendant's defense counsel, so if it can be seen in writing as to the waiver of appeal, the prosecutor's appeal in this case is unlawful as a petition of appeal after the termination of right to appeal.

However, even if there is no restriction on the form of a document concerning the waiver or withdrawal of an appeal in the main sentence of Article 352 Paragraph (1) of the Criminal Procedure Act, since the appellant is an action against the court which waives or withdraws an appeal, the appellant's written opinion must be specified in the court. The prosecutor's opinion above clearly states his/her opinion as to whether to grant a release on bail or not. However, the prosecutor's opinion stated his/her opinion in the opinion that the request on release on bail is groundless and added with the fact that the prosecutor has decided to waive an internal appeal, it cannot be viewed as a written statement specifying his/her intention to waive the appeal to the court.

Therefore, the public prosecutor's appeal of this case cannot be deemed to be a final appeal after the waiver of the right to appeal, and it is legitimate as it is obvious that it has been made within the period of appeal.

2. We examine the Prosecutor’s grounds of appeal.

Examining the judgment of the court below in comparison with the records, the court below's decision that rejected the evidence as to the facts charged, and acquitted on the ground that there is no proof of crime is legitimate, and there is no evidence against the rules of evidence in the process of cooking evidence which was conducted in the fact-finding

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

Justices Yoon Il-young (Presiding Justice)