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(영문) 대법원 2015. 7. 16. 자 2013모2347 전원합의체 결정
[재정신청기각결정에대한재항고][공2015하,1300]
Main Issues

Whether compliance with the statutory period of a reappeal as an immediate appeal against a ruling to dismiss an application for adjudication or a ruling to dismiss such reappeal ought to be determined in accordance with the principle of arrival (affirmative), and whether Article 344(1) of the Criminal Procedure Act applies mutatis mutandis to “special rules for the accused of a prisoner” (negative)

Summary of Decision

[Majority Opinion] Documents to be submitted to the court in the criminal procedure shall have the effect of submission to the court. In determining whether the submission of various documents complies with the statutory period, it shall be based on the time when the relevant documents arrive at the court.

Meanwhile, as an exception to such principle of arrival, the Criminal Procedure Act has a special rule for the defendant of the defendant of the defendant of the defendant of the defendant of the defendant of the defendant in prison or detention house (Article 344 (1); hereinafter "special rule for the defendant of the defendant of the defendant of the defendant") to be considered as appealed within the period for appeal when the defendant of the defendant in prison or detention house or his/her deputy submitted a written appeal within the period for appeal. However, the Criminal Procedure Act does not apply or apply mutatis mutandis to other documents submitted by the defendant except the written appeal, but does not apply or apply mutatis mutandis the special rule for the defendant of the defendant of the defendant of the defendant to be appealed (Articles 355, 361-3 (1) and 379 (1)), submission of the statement of grounds for appeal and appellate brief (Article 430), request for retrial (Article 430), application for exemption from execution of litigation costs, application for the interpretation of trial and the special rule for the defendant of the defendant's case to be applied mutatis mutandis to the procedure of the defendant.

In addition, the procedure of filing an application for a ruling is different in essence from the criminal procedure in which a prosecutor institutes a public prosecution and the criminal defendant is pending in the trial as the complainant is dissatisfied with the disposition of non-prosecution by the prosecutor to the court. In addition, the financial applicant who files an accusation or complaint is not prosecuted by the prosecutor and the status of the defendant who is subject to criminal

In addition, even in cases where an applicant for adjudication is in a prison or detention center, he/she may submit a re-appeal against the decision of dismissal of the application for adjudication by delegation of the authority to submit to a third party, and in cases where the applicant uses the special postal system, the re-appeal may reach the date following the dispatch of the application. In addition, a certain period may be added to the re-appeal period, depending on the location of the correctional institution, etc. which is the applicant for adjudication under Article 67 of the Criminal Procedure Act and Article 44 of the Regulation on Criminal Procedure, the distance from the court, and the degree of traffic and communications inconvenience, and further the period may be extended by the court. In addition, in cases where the applicant for adjudication fails to comply with the re-appeal period against the decision of dismissal of the application for adjudication

In full view of the provisions and legislative purport of the Criminal Procedure Act that separately set the principle of arrival as to the observance of the statutory period and the legislative purport of the special rules for the defendant of a prisoner, distinct characteristics from the criminal trial procedure, and the possibility of the use of the system and the rapid special postal system under the Criminal Procedure Act that can supplement the principle of arrival within the statutory period, whether the statutory period for a reappeal against a ruling to dismiss an application for adjudication or a ruling to dismiss such reappeal as an immediate appeal against a ruling to dismiss an application for adjudication has been observed shall be determined at the time when the reappeal or the immediate appeal reaches the court in accordance with the principle of arrival, and the special rules for

[Dissenting Opinion by Justice Min Il-young, Justice Lee In-bok, Justice Park Poe-young, Justice Park Poe-young, Justice Kim So-young, and Justice Kwon Soon-il] The original purpose of the Criminal Procedure Act to recognize the exception of the principle of reaching a court of appeal is to provide a prisoner with convenience in filing an appeal in consideration of the fact that the act of a person detained in a prison or a detention center and deprived of his freedom to act is an ordinary method to submit a written appeal to the person in charge of the prison, etc. under detention or the acting person and deliver it to the relevant court. In light of the purport of the special provision on the submission of a document by a prisoner, interpreting the above special provision to apply the special provision to an exceptional case, even if there is no express provision, if the submission of a document seriously infringes on the person’s right to appeal.

In a strict sense, criminal procedure means a criminal procedure that is conducted by a court. However, the Criminal Procedure Act regulates a broad sense of criminal procedure that realizes the State's penal authority by checking whether a defendant is guilty or not, including an investigation of a crime, institution of a public prosecution, a trial procedure, an appeal, and the execution of a trial. Article 490(2) of the Criminal Procedure Act applies mutatis mutandis to an objection against the prosecutor's request for exemption of litigation costs and interpretation of a trial after a criminal trial has become final and conclusive. In this regard, the special rule for a prisoner in prison or detention house under the Criminal Procedure Act is more appropriate than that of the defendant, but rather than that of the legal status of the defendant, it is reasonable to regard that the location of a prisoner in prison or detention house has been prepared with serious emphasis on the exercise of rights under the Criminal Procedure Act. Therefore, the special rule cannot be applied mutatis mutandis because a prisoner is not in the status of the defendant.

The period of appeal against a decision to dismiss an application for adjudication is limited to three days under Articles 415 and 405 of the Criminal Procedure Act as an immediate appeal. This is too short or short to allow a prisoner who has received a decision to dismiss an application for adjudication to reach a court. In the end, the applicant for adjudication as a prisoner is able to comply with the period of reappeal immediately after he/she received a decision to dismiss the application for adjudication to the prison warden and immediately prepare a reappeal and send it by special mail, and it is virtually impossible to file a reappeal at any of the stages. In this regard, unless the special rule for prisoners is applied mutatis mutandis to a ruling to dismiss an application for adjudication, unless the special rule for prisoners is applied mutatis mutandis to a ruling to dismiss an application for adjudication, even if the right to file a reappeal is granted formally, the right to file a reappeal is substantially infringed.

Therefore, even if an applicant for a ruling who is a prisoner files a reappeal, it shall be guaranteed a substantial guarantee of the above period as provided in the Criminal Procedure Act, but the appeal period as provided in the initial and short term can be justified. Therefore, the special rule for prisoners shall also apply mutatis mutandis to the submission of a reappeal by the applicant for a ruling as a prisoner.

[Reference Provisions]

Articles 65, 67, 246, 247, 260, 262(2) and (4), 344(1), 345, 355, 361-3(1), 379(1), 405, 415, 430, 490(2) of the Criminal Procedure Act, Article 444 of the Rules on Criminal Procedure, Article 182 of the Civil Procedure Act

Reference Cases

Supreme Court Decision 94Do2687 delivered on January 12, 1995 (Gong1995Sang, 937), Supreme Court Order 98Mo127 dated December 14, 1998 (Gong1999Sang, 312), Supreme Court en banc Order 2003Mo13 Decided March 6, 2003, Supreme Court Decision 2005Do9729 Delivered on March 16, 2006 (Gong2006Sang, 702), Supreme Court Order 2004Do4835 Decided March 24, 2006, Supreme Court Order 2005Mo52 Decided October 13, 2006 (Gong2006Ha, 2113) (amended by Supreme Court Order 2010Mo1989 Decided 25, 2019).

Re-appellant

Re-appellant

The order of the court below

Seoul High Court Order 2013 seconds2672 dated September 25, 2013

Text

The reappeal is dismissed.

Reasons

The grounds of reappeal are examined.

1. Documents to be submitted to the court in the criminal proceedings shall be effective when they reach the court, and when determining whether to comply with the statutory period with respect to the submission of various documents, they shall be based on the time when the documents reach the court naturally;

Meanwhile, as an exception to such principle of arrival, the Criminal Procedure Act has a special rule for the defendant of the defendant of the defendant of the defendant of the defendant of the defendant of the defendant in prison or detention house (Article 344 (1); hereinafter "special rule for the defendant of the defendant of the defendant of the defendant") to be considered as appealed within the period for appeal when the defendant of the defendant in prison or detention house or his/her deputy submitted a written appeal within the period for appeal. However, the Criminal Procedure Act does not apply or apply mutatis mutandis to other documents submitted by the defendant except the written appeal, but does not apply or apply mutatis mutandis the special rule for the defendant of the defendant of the defendant, and it does not apply or apply mutatis mutandis to the application for recovery of the right to appeal or waiver or withdrawal of the appeal (Articles 355 and 379 (1)), submission of the statement of grounds for appeal and written appeal (Article 361-3 (1) and 379 (1)), request for retrial (Article 430), application for exemption from execution of litigation costs, application for the interpretation of trial, and the special rule for the defendant of the defendant.

In addition, the procedure for filing an application for a ruling is different from the procedure of a criminal trial where a public prosecutor institutes a public prosecution and the procedure of a criminal trial is initiated by a public prosecutor. Also, the applicant for a ruling which is an accusation or an accusation is essentially different from the defendant who is under a criminal trial after the public prosecutor institutes a public prosecution. However, it is interpreted that a reappeal against a ruling to dismiss an application for a ruling is permissible. However, the procedure for filing an application for a ruling is based on an institutional purpose different from the procedure for filing an application for a ruling. Therefore, it is interpreted that the Criminal Procedure Act does not apply mutatis mutandis to an application for a ruling where the special provision for a defendant is placed on an appeal for a defendant. It is interpreted that the purpose of the procedure for filing an application for a ruling is different from that for a criminal trial on an accused case, and that there is an essential difference between the applicant for a ruling on the application for a ruling to dismiss the application for a ruling and the applicant for a ruling on the application for a ruling on the application for a ruling on the application for a ruling for a ruling for a ruling for a ruling for a ruling for a ruling for a ruling for a ruling is also different from the application for a ruling on the application for a ruling for a ruling.

In addition, even in cases where an applicant for adjudication is in a prison or detention center, he/she may submit a re-appeal against the decision to dismiss the application for adjudication by delegation of the authority to submit to a third party, and in cases where he/she uses a special postal system, the re-appeal may reach the date following the dispatch of the application. In addition, a certain period may be added to the re-appeal period, depending on the location of the correctional institution, etc. which is the applicant for adjudication under Article 67 of the Criminal Procedure Act and Article 44 of the Regulation on Criminal Procedure, the distance from the court, and the degree of inconvenience in traffic and communications, and further the period may be extended by the court. In addition, in cases where the applicant for adjudication fails to comply with the period of re-appeal against the decision to dismiss the application for adjudication due to

In full view of the provisions and legislative purport of the Criminal Procedure Act stipulating the principle of arrival as to the observance of the statutory period and the legislative purport of the special rules of prisoners individually recognized the exception of the special rules of prisoners, the characteristics distinct from the criminal trial procedure, and the possibility of the use of the systems and prompt special postal systems under the Criminal Procedure Act that can supplement the arrival principle within the statutory period, whether the statutory period for reappeal against the decision to dismiss an application for adjudication or the ruling to dismiss such reappeal as an immediate appeal against the ruling to dismiss the application for adjudication shall be determined at the time when the reappeal or the immediate appeal reaches the court in accordance with the principle of arrival, and it is reasonable to interpret that the special rules

On the contrary, Supreme Court Order 201Mo1925 Decided December 20, 201 and Supreme Court Order 201Mo1899 Decided March 15, 2012 to the effect that the provision of defendant's special rule shall apply mutatis mutandis to the submission of a reappeal to the decision to dismiss the application for adjudication by the applicant for adjudication, shall be amended to the extent inconsistent with this Order.

2. The record reveals the following: (1) The lower court’s decision to dismiss an application for adjudication was served on September 30, 2013 on the applicant for adjudication; (2) the applicant filed a petition for reappeal against the ruling to dismiss the application by ordinary mail to the head of the previous prison on the same day; and (3) the lower court recognized that the said reappeal was filed after the extinguishment of the re-appeal on October 15, 2013; and (2) the applicant filed the ruling to dismiss the reappeal on October 18, 2013; and (3) the applicant submitted the instant petition to the head of the previous prison on October 21, 2013 to the lower court for the immediate appeal against the ruling to dismiss the application; and (4) the head of the instant immediate appeal reaches the lower court on October 29, 2013.

3. Examining the above facts in light of the legal principles as seen earlier, the re-appeal that was filed on October 14, 2013 against the ruling on dismissal of the above application for a ruling on dismissal of a ruling on dismissal of a ruling on dismissal of a ruling on dismissal of a ruling on dismissal of a ruling on dismissal of a ruling on dismissal of a ruling on dismissal of a ruling on dismissal of a ruling on dismissal of a ruling on dismissal of a ruling on dismissal of a ruling was filed after the expiration of the period for reappeal including three statutory period of reappeal as an immediate appeal under Articles 415 and 405 of the Criminal Procedure Act, and the additional period as prescribed in Article 67 of the Criminal Procedure Act and the main sentence of Article 44(1) of the Rules on Criminal Procedure, and it is difficult to view that the ruling constitutes a case where the applicant for a ruling on dismissal of a reappeal was unable to observe the period due to a cause not attributable to the applicant for a ruling on dismissal of a ruling on dismissal of the reappeal of a ruling on dismissal of a ruling on dismissal

4. Therefore, the reappeal of this case is dismissed. It is so decided as per Disposition by the assent of all participating judges, except for a dissenting opinion by Justice Min Il-young, Justice Lee In-bok, Justice Park Poe-young, Justice Kim So-young, and Justice Kwon Soon-il.

5. Dissenting Opinion by Justice Min Il-young, Justice Lee In-bok, Justice Park Poe-young, Justice Kim So-young, and Justice Kwon Soon-il

A. In short, the Majority Opinion does not have any provision applicable mutatis mutandis to the submission of a reappeal against a ruling to dismiss an application for adjudication under the Criminal Procedure Act or a petition for an immediate appeal against a ruling to dismiss such reappeal. Therefore, whether the submission of the above reappeal or the petition for immediate appeal complies with the statutory period should be determined on the basis of the time when the reappeal or the petition for immediate appeal reaches the court, as a matter of course, in accordance

However, since the special rule for prisoners should apply mutatis mutandis to the submission of a re-appeal by an applicant for a ruling, we do not agree with the majority opinion. The reasons are as follows.

B. The purport of the special rule for prisoners under the Criminal Procedure Act to recognize the exception of the principle of arrival of the appeal court is to provide a prisoner with convenience in filing an appeal in consideration of the fact that the act of a person detained in a prison or detention house and deprived of his freedom of action in order to undergo a judgment of the appeal court is an ordinary method to submit a written appeal to the person in charge of the prison, etc. under confinement or the acting person and deliver it to the relevant court (see Supreme Court en banc Decision 2005Do9729, Mar. 16, 2006).

In light of the purport of the special rule for prisoners, if the submission of documents by prisoners is subject to the principle of arrival of the court, and if the submission of documents by prisoners significantly infringes on the right to appeal by prisoners, it would rather be in conformity with the legislative purport of the Criminal Procedure Act with the above special rule, even if there is no express provision. In light of the purport of the special rule for prisoners, it is reasonable to interpret the above special rule as applicable mutatis mutandis to the submission of written grounds for appeal without express application or a written request for formal trial against the summary order (see, e.g., Supreme Court en banc Decision 2005Do9729, Oct. 13, 2006; Supreme Court Order 2005Mo552, Oct. 13, 2006).

C. The special rule for prisoners cannot be applied mutatis mutandis to the submission of a reappeal against a decision to dismiss an application for adjudication on the grounds that the procedure for filing an application is different from that of a criminal trial.

In a strict sense, criminal procedure means criminal procedure that is conducted by the court, however, the Criminal Procedure Act regulates a broad sense of criminal procedure that realizes the State's penal authority by confirming whether a defendant is guilty or not, including the investigation of a crime, institution of a public prosecution, procedure of trial, appeal, filing of a trial, and execution of a trial. Article 490 (2) of the Criminal Procedure Act applies mutatis mutandis to the special rule for a prisoner even after the criminal trial has become final and conclusive.

From this point of view, it is reasonable to view that the special rule for prisoners under the Criminal Procedure Act is established with emphasis on the realistic aspect of restricting the exercise of rights under the Criminal Procedure Act, rather than on the legal status of the defendant. Therefore, the special rule for prisoners cannot be applied mutatis mutandis because they are not in the status of the defendant.

Complaints or accusations, which report criminal facts to an investigation agency and wish to punish an offender, are the only way to urge the victim of a crime to exercise the right of prosecution under the Criminal Procedure Act adopting the State prosecution principle and disinfection point principle (Article 246 of the Criminal Procedure Act), and the prosecution convenience principle (Article 247 of the same Act). The application system for adjudication is an important system to protect the victim's right to claim judicial remedy, and to control the prosecutor's right to request for judicial remedy through the court examination so as not to exercise the right to request disinfection and the right of discretionary discretion, and thus, the applicant for adjudication has to substantially guarantee the re-appeal against the decision to dismiss the application for adjudication on the grounds of violation of the Constitution and statutes.

D. The reappeal against a decision to dismiss an application for adjudication is an immediate appeal and the period of appeal is limited to three days under Articles 415 and 405 of the Criminal Procedure Act, which is too short to allow a prisoner who received a decision to dismiss an application for adjudication to reach a court.

The majority opinion delegates the authority to submit to a third party to file a reappeal, and uses a special postal system. As long as there are various systems to supplement the principle of court arrival, such as adding a certain period to the location of the correctional institution, etc. for which the applicant for the ruling is filed and the distance between the court and the location of the re-appealing institution, etc., the majority opinion argues that even if the special rules on prisoners are not applied mutatis mutandis, the re-appeal may arrive at the court within three days.

First of all, the above systems and methods are equally applicable or available not only to the applicant for the ruling but also to the defendant. Nevertheless, since the special rules are applied to the defendant in submitting a written appeal, the possibility of use of such systems and methods can not be the grounds that the applicant for the ruling cannot apply the special rules to the defendant in submitting a written appeal.

Furthermore, service on a prisoner becomes effective immediately even before it is delivered to the prisoner, even if the head of the prison or detention house in custody receives a written decision (see, e.g., Article 65 of the Criminal Procedure Act, Article 182 of the Civil Procedure Act, and Supreme Court Decision 94Do2687, Jan. 12, 1995). On the other hand, it is difficult for the prisoner to know the result of the trial before it is delivered by the head of the prison or detention house. On the other hand, as the majority opinion states, if the court-oriented principle is maintained for reasons different from the criminal procedure, it is difficult for the prisoner to send a written decision of rejection of the request for a retrial or to decide whether to file a reappeal thereafter by express mail. Even if the applicant for a ruling who is a prisoner delegates to a third party, the process of sending a reappeal to the third party even if he/she delegates the request for the submission of the written request for a ruling, it is also difficult for the prisoner to follow the three-day specific period of time, such as a delay or delay.

In the end, when the court’s arrival principle is dismissed as in the majority opinion, the applicant, who is a prisoner, is judged to file a reappeal immediately after the notification of the decision to dismiss the petition from the prison warden, etc., and immediately prepare a reappeal and send it by special mail. The period of reappeal can be complied with, and even if any delay occurs in any of the stages, it is virtually impossible to file a reappeal. In this regard, insofar as the special rule on the ruling to dismiss an application for a ruling is not applied mutatis mutandis to the reappeal as to the ruling to dismiss the application for a ruling, the right to file a reappeal is practically infringed even if the right to file a reappeal is granted formally.

Although the Criminal Procedure Act could anticipate the detention of suspects and defendants, it is because there exists a special rule for prisoners that the period of an immediate appeal can be set at the first short-term period of three days in order to ensure the prompt stability of litigation procedures. Therefore, even in a case where an applicant for adjudication, who is a prisoner, files a reappeal, the amount of appeal period stipulated in the Criminal Procedure Act may be substantially guaranteed, but the appeal period stipulated in the first short-term and long-term provisions can be justified. Therefore, the special rule for prisoners shall also apply mutatis mutandis to the submission of a reappeal by the applicant for

In a case where an applicant for adjudication detained in a prison or a detention center submits a reappeal against a ruling dismissing an application for adjudication, it is doubtful whether it is the value that should be waived before the request of clarity of the litigation procedure that is granted by the Criminal Procedure Act by extending the re-appeal period to the extent that it is required to deliver the relevant document to the extent necessary. It is questionable whether the fundamental ideology and order of the Constitution, including the principle of separation of powers, including the principle of separation of powers, should ultimately be guaranteed, and the basic ideology and order of the Constitution, including the principle of separation of powers, should ultimately be institutional devices to guarantee the freedom and rights of the people, and by applying the special rule to the submission of an applicant for adjudication, it should not be accepted that the interpretation of the Dissenting Opinion that granting a more stable legal status to prisoners and practically

E. Examining the aforementioned facts in light of the aforementioned legal principles, the reappeal against the dismissal ruling of a request for ruling by the court of original judgment shall be deemed to have been filed within a lawful period of time, regardless of the time when the reappeal was delivered to the original court, as long as the reappeal was filed by the chief of the previous correctional institution within the period of reappeal, regardless of the time when the reappeal was delivered to the original court. (2) The reappeal against the dismissal ruling of the reappeal shall be deemed to have been filed within a lawful period of time as the chief of the previous correctional institution was submitted within the period of reappeal

Nevertheless, the court below dismissed the reappeal on the ground that it is evident that the reappeal against the decision to dismiss an application for adjudication was filed after the extinguishment of the re-appeal. Such decision of the court below is erroneous in the misapprehension of legal principles as to special rules for prisoners, and thus, the court below's order should be reversed.

For the foregoing reasons, we express our dissent from the Majority Opinion.

Justices Yang Sung-tae (Presiding Justice)

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심급 사건
- 서울고등법원 2013.9.25.자 2013초재2672

따름판례

- 헌법재판소 2018. 12. 27. 선고 2015헌바77 전원재판부 [헌공제267호,57]

관련문헌

- 심희기 2015년 1월~8월 사이에 선고된 기타 중요판결들의 요약 형사소송법 핵심 판례 110 제2판 / 박영사 2016

- 서울중앙지방법원 (새로 쓰는) 민사판결서 사법발전재단 2015

참조판례

- 대법원 1995. 1. 12. 선고 94도2687 판결

- 대법원 1998. 12. 14.자 98모127 결정

- 대법원 2003. 3. 6.자 2003모13 결정

- 대법원 2006. 3. 16. 선고 2005도9729 전원합의체 판결

- 대법원 2006. 3. 24. 선고 2004도4835 판결

- 대법원 2006. 10. 13.자 2005모552 결정

- 대법원 2011. 12. 20.자 2011모1925 결정(변경)

- 대법원 2012. 3. 15.자 2011모1899 결정(변경) (변경)

참조조문

- 형사소송법 제65조 (위헌조문)

- 형사소송법 제67조

- 형사소송법 제246조 (위헌조문)

- 형사소송법 제247조 (위헌조문)

- 형사소송법 제260조 (위헌조문)

- 형사소송법 제262조 제2항 (위헌조문)

- 형사소송법 제262조 제4항 (위헌조문)

- 형사소송법 제344조 제1항

- 형사소송법 제345조 (위헌조문)

- 형사소송법 제355조

- 형사소송법 제361조의3 제1항

- 형사소송법 제379조 제1항

- 형사소송법 제405조 (위헌조문)

- 형사소송법 제415조 (위헌조문)

- 형사소송법 제430조

- 형사소송법 제490조 제2항

- 형사소송규칙 제44조 (위헌조문)

- 민사소송법 제182조

본문참조판례

대법원 1998. 12. 14.자 98모127 결정

대법원 2003. 3. 6.자 2003모13 결정

대법원 2011. 12. 20.자 2011모1925 결정

대법원 2012. 3. 15.자 2011모1899 결정 (변경)

대법원 2006. 3. 16. 선고 2005도9729 전원합의체 판결

위 대법원 2005도9729 전원합의체 판결

대법원 2006. 10. 13.자 2005모552 결정

대법원 1995. 1. 12. 선고 94도2687 판결

본문참조조문

- 형사소송법 제344조 제1항

- 형사소송법 제355조

- 형사소송법 제361조의3 제1항

- 형사소송법 제379조 제1항

- 형사소송법 제430조

- 형사소송법 제490조 제2항

- 형사소송법 제262조 제4항

- 형사소송법 제67조

- 형사소송규칙 제44조

- 형사소송법 제345조

- 형사소송법 제415조

- 형사소송법 제405조

- 형사소송규칙 제44조 제1항

- 형사소송법 제246조

- 형사소송법 제247조

- 형사소송법 제65조

- 민사소송법 제182조

원심판결

- 서울고법 2013. 9. 25.자 2013초재2672 결정