Appeal to the Supreme Court (Final Appeal)
If the defendant objects to the judgment declared in the second trial, he/she may appeal to the Supreme Court (Article 371 of the Criminal Procedure Act).※ Direct Appeal
- If falling under any of the following cases, the defendant may omit to file an appeal to the first trial’s judgment and file it directly to the Supreme Court (Article 372 of the Criminal Procedure Act).
· If laws and regulations were not applied to facts acknowledged in the original trial’s judgment, or if laws and regulations were mistakingly applied.
· If the sentence had been abrogated, modified, or pardoned after the original trial’s judgment.
- A direct appeal loses effect when the appeal has been filed on the case. However, it shall not lose effect when the withdrawal or dismissal of appeal has been determined.
Reason for Appeal- If falling under any of the following cases, the defendant may appeal to the Supreme Court on the judgment of the original trial (Article 383 of the Criminal Procedure Act).
· If a violation of the Constitution, law, command, or regulation affected the judgment
· If the sentence had been abrogated, modified, or pardoned after the judgment
· If there is a reason for the application for a retrial
· If a severe misunderstanding affected the judgment of a case involving a sentence of death, imprisonment for life, or more than 10 years of imprisonment or imprisonment without labor. Or if there are justifiable reasons to deem the sentence determination as severely unjust.
Filing an Appeal to the Supreme Court- Period and Method to File an Appeal to the Supreme Court
· A person intending to file an appeal to the Supreme Court shall submit the written appeal to the original court within seven days after the appellate trial declares judgment (Articles 374 and 375 of the Criminal Procedure Act).
※ Suppose the filing of an appeal apparently violated legal procedures or if it was filed after the right of appeal expired. In this case, the original court may decide to dismiss the appeal, and the defendant may file an immediate appeal on this decision (Article 376 of the Criminal Procedure Act).
- Statement of Appeal and the Written Reply
· The appellant or the appellant’s attorney shall submit the statement of appeal to the Supreme Court within 20 days after the court’s notification of receiving the records of the lawsuit (Front Part of Article 379, paragraph 1 of the Criminal Procedure Act).
※ Suppose the defendant in prison or detention center submits the written appeal to the warden of a prison or detention center, or a substitutor of the warden within the period of filing the appeal. In this case, the defendant shall be considered to have filed the appeal within its designated period (Latter Part of Article 379, paragraph 1 of the Criminal Procedure Act).
· The Supreme Court that has received the statement of appeal shall deliver the statement copy or certified statement copy to the opposite party. Then, the opposite party shall submit a written reply to the Supreme Court within 10 days after receiving the statement (Article 379, paragraphs 3 and 4 of the Criminal Procedure Act).
※ The Supreme Court shall decide to dismiss the appeal if the appellant or the appellant’s attorney failed to submit the statement of appeal within the designated period.However, the preceding sentence shall not apply if there are reasons such as an official authority to investigate on the appeal or if there are reasons indicated in the written appeal (Article 380, paragraph 1 of the Criminal Procedure Act).
※ Suppose the reason indicated on the written appeal and statement appeal apparently does not fall under reasons that permit appeal. In this case, the Supreme Court shall decide to dismiss the appeal (Article 380, paragraph 2, and Article 383 of the Criminal Procedure Act).
Judgment of the Supreme Court- The Supreme Court judges whether the reason indicated on the statement of appeal is reasonable. However, if the defendant filed the appeal due to any of the following reasons, the Supreme Court may judge the appeal by official authority, even if the reason is not indicated in the Statement of Appeal (Article 384 and Article 383, paragraphs 1 to 3 of the Criminal Procedure Act).
· If a violation of the Constitution, law, command, or regulation affected the judgment
· If the sentence had been abrogated, modified, or pardoned after the judgment
· If there is a reason for the application for a retrial
- If there is a reason for the appeal, the Supreme Court shall decide to abrogate the original trial’s judgment (Article 391 of the Criminal Procedure Act).
- Suppose the Supreme Court abrogated the original trial’s judgment. In this case, the Supreme Court may make a judgment of the case itself, if it deems it reasonable to rejudge the case according to the records of the lawsuit and evidence inspected by the original court and court of the first instance (Article 369, paragraph 1 of the Criminal Procedure Act).
- If the reason of judgment abrogation does not fall under any of the following cases, the Supreme Court will remand the case after reversal to the original court or another court equivalent to the original court (Article 397 of the Criminal Procedure Act).
· If the Supreme Court remands the judgment on the case after reversal to the original court or court of first instance due to the corresponding court dismissing a legal prosecution.
· If the Supreme Court transfers the judgment of the original court or court of first instance to the competent court because the competent court’s approval of the judgment violated the law.
· If the case has been remanded after reversal to the original court or court of first instance, as acknowledging the competent court’s violation goes against the law.
· If the Supreme Court abrogates the judgment of the original court and does not make judgment itself.
Prohibition of Disadvantageous Alteration- Suppose the defendant or the defendant’s attorney, not the prosecutor, filed an appeal. In this case, the court shall not impose a punishment of a heavier sentence than the one declared at the original trial (Article 396, paragraph 2, and Article 368 of the Criminal Procedure Act).