Whether Article 344(1) of the Criminal Procedure Act, which provides for a special rule for prisoners in filing an appeal for the submission of an appeal may also apply mutatis mutandis to the submission of a written reason for appeal (affirmative)

[Majority Opinion] The special rule of the Criminal Procedure Act provides for the exception to the principle of arrival of a court for a defendant in prison or detention house. The purpose of the special rule of the court for a defendant in prison or detention house is to provide the defendant with convenience in filing an appeal in consideration of the fact that it is normal to submit a written appeal to the person in charge of the prison or detention house under confinement or to acting for him/her to deliver the written appeal to the relevant court. However, the defendant can only be tried on the grounds of his/her assertion by submitting a legitimate written reason for appeal, so the reason for appeal is required to be submitted to the appellate court together with the written reason for appeal, and there is no difference between the appellate court and its circumstance in the method of submitting the written reason for appeal. On the other hand, if the defendant's right to appeal is dismissed only because it was delivered to the court within the period of time despite submission of the written reason for appeal to the prison or detention house within the period of time, it is reasonable to interpret the special rule of the Criminal Procedure Act which applies mutatis mutandis to the defendant's right to appeal.

[Dissenting Opinion] The basic principle is that the submission of documents to the court in the criminal procedure is effective at the court. Thus, in order to determine whether the submission of documents complies with various statutory periods as prescribed by the Criminal Procedure Act, it should naturally be based on the time the documents reached the court. However, as an exception to Article 344(1) of the Criminal Procedure Act, where the defendant who is a prisoner submits a written appeal, this special rule is provided for the case where Article 355 of the same Act applies mutatis mutandis to the request for recovery of right of appeal, withdrawal of appeal and waiver of appeal, Article 430 of the same Act applies mutatis mutandis to the case of request for retrial and withdrawal of appeal, Article 490(2) of the same Act, and it is only applicable mutatis mutandis to the application for exemption of execution of this cost of appeal and its withdrawal. Therefore, it is unnecessary to apply the above special rule to the submission of documents to the appellate court in accordance with the principle of interpretation. Furthermore, it is not possible to interpret the above special provision to apply mutatis mutandis the above special provision to the legislative act.

Articles 344(1), 355, 430, and 490(2) of the Criminal Procedure Act

Supreme Court en banc Order 63Do121 Decided May 21, 1963, Supreme Court Decision 4292Mo261 Decided July 20, 1959, Supreme Court Decision 63Do121 Decided June 13, 1963, Supreme Court en banc Order 64Do87 Decided May 21, 1964 (defishment), Supreme Court Order 67Mo24 Decided May 20, 1967 (defishment), Supreme Court Order 69Mo84 Decided November 26, 1984 (defishment), Supreme Court Order 84Mo57 Decided October 11, 1984 (Gong1985,44) (defishment), Supreme Court Order 60Mo80 Decided June 20, 2005 (defishment) (defishment)

Defendant

Defendant

Suwon District Court Decision 2005No4006 decided Nov. 30, 2005

The appeal shall be dismissed. One hundred days out of the number of detention days after the appeal shall be included in the original sentence.

1. We examine ex officio the legitimacy of the submission of the appellate brief of this case.

According to the records, the defendant who was detained in the Suwon Detention House was served on December 28, 2005 of the Supreme Court's notification of the receipt of the notification of the receipt of the trial record on December 28, 2005 and submitted the notification to the prison officer of the Suwon Detention House on January 16, 2006. However, the above statement of the appellate brief sent by mail was sent to the prison officer of the Suwon Detention House on January 17, 2006. The above statement of the appellate brief arrived at around 15:0

However, Article 344(1) of the Criminal Procedure Act provides for a special rule for the so-called "when a defendant in a prison or detention house submits a written appeal to the head of the prison or detention house or his/her deputy within the period for filing an appeal, he/she shall be deemed to have appealed within the period for filing an appeal." However, Article 355 of the Criminal Procedure Act provides for a special rule for the so-called prisoner to apply mutatis mutandis to the period for filing an appeal (Article 355 of the Criminal Procedure Act)

The purpose of the special rule of the Criminal Procedure Act to recognize the exception of the principle of arrival of the appeal court is to provide the defendant with convenience in filing an appeal in consideration of the fact that the act of the defendant, who is detained in the prison or detention house and is deprived of his freedom of action, by submitting a written appeal to the person in charge of the prison, etc. under detention or the acting person, and allowing him/her to deliver it to the relevant court in the course of performing his/her duties. However, the defendant can only be tried on the grounds of appeal that he/she claims by submitting a legitimate written reason for appeal, so the reason for appeal is required to be submitted to the appellate court together with the written reason for appeal, and there is a difference in the length of the period, and there is no difference in the method of submitting the written reason for appeal.

On the other hand, if an appeal is dismissed solely on the ground that the written reason for appeal was submitted to the prison warden, etc. within the period of submission despite the submission of the written reason for appeal, it would deprive the person who has done his best best to be tried for the discovery of substantive truth, which would result in damaging the ideology of criminal procedure that exercises the penal right through the discovery of substantive truth, and resulting in a result of personal solicitation. The Criminal Procedure Act recognizes a claim for recovery of the right of appeal to a person who has failed to file an appeal within the period of appeal due to a cause not attributable to himself/herself or his/her representative (Article 345 of the Criminal Procedure Act), and the special provision for prisoners shall apply mutatis mutandis to the period of the request for recovery of his/her right of appeal shall not be deprived of the right of appeal due to a cause not attributable to the defendant.

Therefore, even if there is an omission in the case of the submission of a written reason for appeal while the special rule for prisoners is applied mutatis mutandis in Article 355 of the Criminal Procedure Act, in light of the purport of the special rule for prisoners under Article 344(1) and the legal principles of Article 355 that provide for the application mutatis mutandis of the special rule and the special rule for prisoners under Article 344(1), it is reasonable to interpret that the special rule for prisoners shall apply mutatis mutandis to the submission of the written reason for appeal (see Supreme Court Decision 4292Du261 delivered on July 20,

In contrast, Supreme Court Order 63Mo5 Decided May 2, 1963; Supreme Court Decision 63Do121 Decided June 13, 1963; Supreme Court en banc Order 64Do87 Decided May 21, 1964; Supreme Court Order 67Mo24 Decided May 20, 1967; Supreme Court Order 69Mo84 Decided November 26, 1969; Supreme Court Order 84Mo57 Decided October 11, 1984; Supreme Court Order 2000Mo69 Decided June 20, 200, etc. shall be all discarded.

According to the above legal principles and factual relations, the appellate brief of this case submitted by the defendant to a correctional officer of the Suwon Detention House who was under confinement within the deadline for submitting the appellate brief shall be deemed legitimate within the deadline.

2. The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

Examining the evidence of the first instance court maintained by the court below in light of the records, the fact that the victim was obtained a sum of 5,530,000 won from the victim non-indicted on 13 occasions in the same manner as the facts charged, although the defendant did not have the intent or ability to repay, is recognized, and the fact that the victim acquired it by deception is not erroneous in violation of the rules of evidence

3. Therefore, the defendant's appeal shall be dismissed, and part of the detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion by Justice Lee Hong, Justice Shin Hyun and Justice Yang Sung-tae.

4. Dissenting Opinion by Justice Lee Hong-hoon, Justice Ko Hyun-chul, and Justice Yang Sung-tae is as follows.

As well known, as the principle of separation of powers is one of the highest guiding principles adopted by the Constitution to protect free democracy, if the limit of the principle of separation of powers under the Constitution is not observed, there is a risk that the ultimate ideology of the Constitution will be damaged if the constitutional order is confused and the constitutional order is not maintained.

According to the Constitution, legislative power (Article 40 of the Constitution), namely, the legislative power belongs to the National Assembly (Article 40 of the Constitution), and the court is granted judicial power to interpret and apply the laws enacted by the National Assembly (Article 101 of the Constitution), and judges are obliged to judge according to conscience in accordance with the Constitution and laws (Article 103 of the Constitution). In the absence of a law applicable to a case subject to adjudication, judges are obligated to interpret other provisions applicable to a similar case, or to judge by appropriate legal principles by finding a court such as customary law or cooking, etc., and in the interpretation of the law, the ambiguous or inconsistency of the contents is removed by reasonable interpretation. Therefore, in the trial process, the court does not perform the function of partial construction or creation of the law. However, in a case where there is no doubt of interpretation by clarifying the meaning and contents of the provisions of the law in the trial process, it is interpreted differently from the explicit or unreasonable points, thereby bringing about the same effect of partially adding, removing, or changing the contents of the law, and thus, it is more reasonable to apply other provisions of law.

In light of the case, since the basic principle of the submission of documents to the court in the criminal procedure lies in the effect of the submission to the court, the submission of documents must naturally be based on the time when the documents reached the court in compliance with various statutory periods as prescribed by the Criminal Procedure Act. However, in exceptional case of Article 344(1) of the Criminal Procedure Act, the special rule is placed on the case where the defendant who is a prisoner submits a written appeal, while Article 355 of the same Act applies mutatis mutandis to the case of the claim for recovery of the right of appeal, withdrawal of appeal, waiver of appeal, and withdrawal of appeal, Article 430 of the same Act applies mutatis mutandis to the request for retrial and the case of the withdrawal thereof, Article 430(2) of the same Act only to the case where the application for exemption of the execution of this cost of appeal and the withdrawal thereof are applied mutatis mutandis. Therefore, the grounds for appeal that do not provide for the application

The majority opinion argues that even if Article 355 of the Criminal Procedure Act provides that the submission of a written reason for appeal shall be subject to the application of the special provision of Article 344(1) of the same Act, the above special provision shall apply mutatis mutandis to the submission of the written reason for appeal in light of the necessity of the provision of convenience to prisoners and the ideology of the Criminal Procedure Act. However, such reason is a common circumstance in other cases where the observance of the statutory period is required, and it is difficult to view it as a reason specially required only to the submission of

Rather, in light of the request for clarity of litigation procedures, it is desirable to uniformly determine whether to observe the statutory period, barring any special circumstance. The period for submitting an appeal is a relatively short period (Articles 358, 374, and 405, etc. of the Criminal Procedure Act), whereas the period for submitting an appeal is much longer long (Articles 361-3(1), 379, etc. of the Criminal Procedure Act) and there is no need to promote convenience for prisoners in terms of urgency, etc. The Criminal Procedure Act has a special provision under Article 344(1) of the same Act, and there is no special provision under Article 355, 430, and 490(2) of the same Act applicable mutatis mutandis to the submission of the written reason for appeal, but the Supreme Court has not applied mutatis mutandis to the submission of the written reason for appeal through precedents since 1963, and there is no provision under the premise that the provision on the submission of the written reason for appeal has not been applied mutatis mutandis to the submission of the written reason for appeal.

Furthermore, if it is interpreted that the above special rule is applied mutatis mutandis to the submission of the written reason for appeal because it is necessary to apply the above special rule to the case of the submission of the written reason for appeal and it is consistent with the ideology of the Criminal Procedure Act, it is nothing more than to revise the law by adding the contents of "the submission of the reason for appeal" to the law under Article 355 of the Criminal Procedure Act, or by newly establishing one of the above special provisions to apply the above provision to the submission of the reason for appeal. It is apparent that such interpretation constitutes a legislative act rather than a legal interpretation. Therefore, even if there is no legislation in favor of the law as pointed out in the majority opinion, the correction of it can not be done on behalf of the National Assembly, and it is our constitutional order that it should not be done on behalf of the court. Even though it is not consistent with the purport of the majority opinion in this case, this problem is an issue that is linked to the basic ideology of the Constitution of the Republic of Korea, such as the principle of statutory interpretation and separation of powers.

For this reason, we maintain the previous precedents and oppose the majority opinion on the ground that the defendant's filing of the appellate brief to the prison warden within the period for submitting the appellate brief alone cannot be deemed to have filed the appellate brief within a legitimate period, deeming that it is the right measure to dismiss the appeal of this case by decision under Article 380 of the Criminal Procedure Act.

Chief Justice Lee Yong-hoon (Presiding Justice) (Presiding Justice)