Requirements for determining the dismissal of an appeal on the grounds of the submission of the appellate brief / Where the spouse, who is the power of attorney of the defendant, has lodged an appeal on behalf of the defendant, whether the notification of the receipt of the trial record should be made to the defendant

According to Articles 361-4, 361-3, and 361-2 of the Criminal Procedure Act, where an appellant or defense counsel fails to file an appellate brief within 20 days from the date on which the appellate court received the notification of the receipt of the trial records, and no grounds for appeal are indicated in the petition of appeal, the appeal may be dismissed by ruling. However, in order to determine the dismissal of appeal on the grounds of the submission of the appellate brief, the appellant should have received the notification of the legitimate receipt of the trial records and did not submit the appellate brief within 20 days without justifiable grounds. Even in cases where the spouse who is the representative authority of the defendant appealed for the defendant (Article 341 of the Criminal Procedure Act), the notification of the receipt of the trial records should be made to the defendant who is the appellant (Article 361-2 of the Criminal Procedure Act) (Article 361-2 of the Criminal Procedure Act);

Articles 341, 361-2, 361-3, and 361-4 of the Criminal Procedure Act

Supreme Court Order 2017Mo2162 Decided November 7, 2017 (Gong2017Ha, 2362)

Re-appellant

Attorney Park Jong-jin

Re-appellant

Suwon District Court Order 2012No2975 dated November 29, 2012

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

The grounds of reappeal are examined.

1. According to Articles 361-4, 361-3, and 361-2 of the Criminal Procedure Act, where an appellant or defense counsel fails to submit the appellate brief within 20 days from the date on which he/she received the notification of the receipt of the notification of the trial records from the appellate court, and there is no statement in the grounds for appeal even within 20 days from the date on which he/she received the notification of the receipt of the trial records, the appellant may dismiss the appeal by decision. However, in order to dismiss the appeal on the grounds of submission of the appellate brief, the appellant should have received the notification of the legitimate receipt of the trial records and did not submit the appellate brief within 20 days without justifiable grounds (see, e.g., Supreme Court Order 2017Mo2162, Nov. 7, 2017). Where a spouse who is the representative authority of the defendant appeals appeals for the defendant (Article 341 of the Criminal Procedure Act), the notification of the receipt of the trial records should be made to the defendant who is the appellant (Article

2. According to the record, the following facts are revealed.

A. On April 23, 2009, the Re-Appellant did not enter the Republic of Korea until he returned to the Republic of Korea on January 29, 2018. A prosecutor indicted the Defendant on April 30, 2009, Suwon District Court Sejong District Court (2009Kadan577) on the charge of fraud.

B. On June 28, 2012, the first instance court served a copy of indictment and a writ of summons, etc. by means of service by public notice, and tried to examine the case in the absence of the re-appellant, and sentenced the Defendant to six months of imprisonment.

C. On July 5, 2012, the non-indicted 1’s spouse, who was living in Korea, appealed on July 5, 2012 with the knowledge that the above judgment was pronounced.

D. On August 6, 2012, the lower court sent the notification of the reception of the trial record, etc. on the re-appellant to Pyeongtaek-si (location omitted), which is the domicile of the Nonindicted Party, and the Nonindicted Party received the notification on August 10, 2012.

E. On November 29, 2012, the lower court rendered a decision dismissing the appeal on the ground of the submission of the appellate brief against the re-appellant.

F. On January 29, 2018, the re-appellant returned from Australia. As a result of the execution of a sentence under the above first instance judgment, the re-appeal in this case was filed along with a request for recovery of the right of appeal, and on February 13, 2018, the decision of recovery of the right of appeal (the Suwon District Court Order 2018Hu259) became final and conclusive.

3. Examining the above facts in light of the legal principles as seen earlier, while the non-indicted, the spouse of the re-appellant, was notified of the notification of the receipt of the appeal case at the place of residence, the re-appellant had already left Korea as Australia and continued to stay in a foreign country for more than two years and did not live together with the non-indicted, the non-indicted's place of residence cannot be viewed as a legitimate place of service, such as address and residence, etc., which is the actual living ground of the re-appellant, and the non-indicted cannot be seen as a co-appellant of the re-appellant under Article 65 of the Criminal Procedure Act and Article 186 (

The court below's decision to dismiss an appeal on the ground that the court below did not submit the appellate brief within 20 days from the date of delivery of the notification of the notification of the receipt of the trial record on the premise that the Re-Appellant legally arrives, is contrary to the above legal principles as to Articles 361-2 and 361-4 of the Criminal Procedure Act, and it constitutes a case where the litigation procedure is

4. The reappeal of this case is with merit, and the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Chang-suk (Presiding Justice)