Supreme Court En Banc: "Appeal Skipping Second Trial Must Be Considered as an Appeal"

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Chief Justice Kim Myeong-su and other Supreme Court justices are seated for the plenary session verdict on the afternoon of the 19th at the Supreme Court in Seocho-gu, Seoul. / Provided by the Supreme Court

[Asia Economy Reporter Heo Kyung-jun] The Supreme Court has ruled that if a second trial is held due to the prosecutor's appeal, even if the defendant who filed a 'leapfrog appeal'?an appeal directly to the Supreme Court without going through the appellate court?did not submit a notice of appeal, it should be considered as an appeal.

The Supreme Court en banc (Presiding Justice Oh Kyung-mi) on the 19th overturned the original sentence of three years imprisonment in the appeal trial of Mr. A, who was indicted on charges of robbery, assault, and obstruction of business, and remanded the case to the Busan High Court.

Mr. A was prosecuted for assaulting a woman in her 60s at a bar in September 2020, causing a disturbance and obstructing business, and for hitting another woman in her 60s on the street in February last year and stealing a bag containing 17,000 won in cash.

The first trial court sentenced Mr. A to three years in prison, considering that he committed the crimes during a recidivist period, and ordered him to wear an electronic location tracking device for 10 years. Mr. A filed a 'leapfrog appeal' directly to the Supreme Court, arguing that the sentence was too heavy.

A leapfrog appeal is a procedure where, under certain circumstances in the first trial judgment, the appellant can skip the appellate court and directly appeal to the Supreme Court. This can be done if the first trial judgment misapplied the law or if there has been abolition, change, or pardon of the sentence after the judgment. However, if the opposing party in a criminal case files an appeal, the leapfrog appeal loses its effect and a second trial is held.

When Mr. A filed the leapfrog appeal, the prosecutor filed an appeal the next day. The second trial court, having received the case, judged that since Mr. A did not submit a separate notice of appeal, only the prosecutor's appeal existed, and maintained the first trial judgment without reviewing Mr. A's claim of excessive sentencing. According to Supreme Court precedents, when the defendant's leapfrog appeal and the prosecutor's appeal compete, the leapfrog appeal is considered ineffective.

However, the Supreme Court en banc overturned the previous precedent and ruled that Mr. A's appeal has the effect of an appeal.

The majority of justices stated, "If the effect of the leapfrog appeal is lost, and the effect of the appeal is also denied, the defendant's constitutional right to request a trial would be excessively infringed." They held that if the defendant files a leapfrog appeal, even if the case cannot go directly to the Supreme Court due to the prosecutor's appeal, it should be regarded as the defendant's intention to challenge the effect of the first trial judgment.

On the other hand, Justices Ahn Cheol-sang, Noh Tae-ak, and Min Yoo-sook dissented, arguing that the majority's ruling could undermine procedural stability in litigation and that the defendant's intentions in the leapfrog appeal and the appeal should be distinguished.

A Supreme Court official explained, "By changing the previous precedent, the Supreme Court has guaranteed the defendant's right to have an appellate trial when filing a leapfrog appeal, and expanded the procedural rights of the parties to correct illegalities in lower court judgments."

This content was produced with the assistance of AI translation services.