Part  III Appeals

Chapter  1 General Provisions

Article 344(Right to Appeal (I) - Party)
A party who disagrees with the judgment of a lower court may appeal to the appellate court.
Where a private prosecutor loses his legal capacity or dies prior to the conclusion of the argument, a person listed in Paragraph 1 of Article 319 may appeal for the said private prosecutor.
Where a complainant or victim disagrees with the judgment of a lower court, he/she may request the prosecutor to appeal with reasons set forth.
A prosecutor may appeal for interests of the defendant.
The original trial court shall report cases sentenced capital punishment or life imprisonment to the appellate court muto proprio without an appeal and notify parties.
Under the circumstance specified in the preceding paragraph, it is deemed that a defendant has appealed.

Article 345(Right to Appeal (II) – Independent Appeal)
Parents or spouse of a defendant may appeal independently for interests of the defendant.

Article 346(Right to Appeal (III) – Representative Appeal)
An agent or defense attorney in the original trial may appeal for interests of the defendant; provided that it may not be contrary to defendant’s express will.

Article 347(Right to Appeal (IV) – Prosecutor in Private Prosecutions)
A prosecutor may appeal independently for judgments in private prosecutions.

Article 348(Scope of Appeal)
The appeal may be brought against part of the judgment; if fails to specify the part appealed, it is considered as an appeal in whole.
Relevant parts of the partial judgment appealed are considered as appealed.

Article 349(Time Limit for Filing an Appeal)
The time limit for filing an appeal is 10 days start from the day the judgment is served; provided that appeals made after the judgment announcement and before the service are also effective.

Article 350(Appeal Process)
Appeals shall be brought to the original trial court with a written petition.
Copies of the written appeal shall be made in accordance with the number of opposing party.

Article 351(Appeals by Defendants in a Prison or Detention Center)
Where a defendant in a prison or detention center submits a written appeal to the officer in charge of such prison or detention center during the period for appeal, it is deemed to have appealed within the period for appeal.
Where a defendant could not prepare a written appeal, officers in the prison or detention center shall prepare such written appeal for the defendant.
Once the officer in charge of the prison or detention center receives a written appeal, he/she shall specify the time, date, month, and year of such reception and deliver it to the original trial court.
Where a defendant’s written appeal is not filed to the officer of a prison or detention center, the clerk of the original trial court shall notify such officer after receiving the written appeal.

Article 352(Service of Copies of the Written Petition)
A clerk of the original trial court shall serve copies of the written petition promptly to the opposing party.

Article 353(Waiver of the Right to Appeal)
A party may waiver his/her right to appeal.

Article 354(Appeal Withdrawal)
Appeals may be withdrawn before the judgment is made; the same rule shall apply to cases remanded to the original trial court by the court of third instance or cases remanded to other courts of the same level as the original trial court.

Article 355(Restrictions to Appeal Withdrawal (I) – Defendant’s Consent)
An appeal for interests of the defendant may not be withdrawn without consent of the defendant.

Article 356(Restrictions to Appeal Withdrawal (II) – Prosecutor’s Consent)
An appeal made by a private prosecutor may not be withdrawn without consent of the prosecutor.

Article 357(Jurisdiction for Appeal Waiver or Withdrawal)
A waiver of appeal rights shall be filed to the original trial court.
An appeal withdrawal shall be filed to the appellate court; provided that it could be filed to the original trial court before dossier of the case are handed over to the appellate court.

Article 358(Process for Appeal Waiver or Withdrawal)
An appeal waiver or withdrawal shall be made in writing, provided that it may be verbally initiated in the presence of the court on the trial date.
Article 351 shall apply mutatis mutandis where a defendant waivers the right to appeal or withdraws the appeal.

Article 359(Effect of an Appeal Waiver or Withdrawal)
Those who waiver or withdraw an appeal lose the right to appeal.

Article 360(Notice for Appeal Waiver or Withdrawal)
A clerk shall notify the opposing party promptly in case of an appeal waiver or withdrawal.

Chapter  II The Second Instance

Article 361(Jurisdiction for Appeal in the Second Instance)
A person who disagrees with a judgment of first instance made by a district court shall file an appeal to the court of appeal with jurisdiction of the second instance.
A written petition of appeal shall set forth specific ground of reasons.
A person who fails to set forth ground of reasons in a written petition of appeal shall submit ground of reasons in writing to the original trial court within 20 days since the appeal period lapses. The original trail court shall set a period for those who fail to submit written ground of reasons in the specified period to correct the defect.

Article 362(Original Trial Court’s Disposition against Illegal Appeals - Overrule by a Ruling or Order Amendment)
The original trial court shall, by a ruling, immediately overrule an appeal if it does not comply with legal formality, or if it shall not be granted as a matter of law, or if the right to appeal has lapsed; provided that where the deficiency in legal formality is amendable, the court shall order an amendment to be made within a prescribed period.

Article 363(Transfer of Files, Exhibits and Defendant in a Prison or Detention Center)
Except for situations listed in the preceding article, the original trial court shall promptly transfer of dossier and exhibits to the court of second instance.
Where a defendant is in a detention center or prison other than the location of court of second instance, the original trial court shall send such defendant to a detention center or prison where the court of second instance is located and notify such court.

Article 364(Apply Mutatis Mutandis Procedure of First Instance)
Unless otherwise provided in this Chapter, the trial of second instance shall apply mutatis mutandis the procedure of first instance.

Article 365(Appellant States the Appeal Purport)
After a presiding judge questions a defendant pursuant to Article 94, the judge shall order the appellant to state the purport of appeal.

Article 366(Scope of Investigation in the Second Instance)
The court of second instance shall investigate the parts of original judgment which have been appealed.

Article 367(Court of Second Instance’s Disposition against Illegal Appeals - Overrule by a Ruling or Order Amendment)
The court of second instance shall overrule by a ruling if the written appeal fails to set forth ground of reasons or if an appeal has situations listed in the former part of Article 362; provided that where the deficiency is amendable but not ordered an amendment by the original trial court, the presiding judge shall order an amendment to be made within a prescribed period.

Article 368(Judgment for a Meritless Appeal)
The court of second instance shall overrule an appeal by ruling if it finds such appeal meritless.

Article 369(Revoke the Original Judgment – Adjudicate or Remand the Case)
The court of second instance shall reverse the relevant portion of the original judgment and adjudicate the case upon finding the appeal meritorious or upon finding an appeal meritless but the original judgment is improper or illegal; provided that where the original judgment is set aside become of the trial court’s improper ruling on jurisdiction, exempt from prosecution, or case dismissed.
Where the court of second instance reverses the original judgment for the latter wrongfully pronounced mistake in jurisdiction, if the court of second instance has jurisdiction over the first instance, it shall render a judgment of first instance.

Article 370(Principle of the Prohibiting Alteration for Interests (I))
The court of second instance may not pronounce a sentence heavier than the one in the original judgment for an appeal filed by a defendant or for interests of the defendant; provided that this rule does not apply if the judgment of the original court is set aside because of the law was wrongly applied.

Article 371(Single Party Judgment (VI))
Where a defendant default without due reasons after having been legally summoned, a judgment may be made without his/her statement.

Article 372(Exceptions to Oral Hearing (II))
For an appeal against a judgment under Article 367 or a judgment of mistake in jurisdiction, exempt from prosecution, or case dismissed rendered by the original trial court, the court of second instance may deny an appeal that is meritless or remand a meritorious case without oral argument.

Article 373(Quote from the Judgment of First Instance)
A judgment of second instance may quote facts, evidence and reasons set forth in the judgment of first instance, and the reasons shall be supplemented recorded for material items that have not been specified in the first instance, or for evidence or defense favorable to the defendant which has been proposed in the second instance but was not adopted.

Article 374(Formality of a Judgment Appealable)
Where a defendant or private prosecutor may appeal against the judgment of second instance, the period for submitting the reasons for appeal in writing shall be set forth in the original judgment served.

Chapter  III The Third Instance

Article 375(Jurisdiction of the Appeal in the Third Instance)
A person who disagrees with a judgment of first instance or second instance made by a Court of appeal shall file an appeal to the Supreme Court.
The procedure of third instance shall apply where the trial of Supreme Court disagrees with the first instance judgment of a Court of appeal.

Article 376(Judgments not Appealable to the Third Instance)
Once judged by the court of second instance, cases involving the following offenses are not appealable to the court of third instance:
1. Offenses with a maximum punishment of no more than three years imprisonment, detention, or a fine only;
2. Offense of theft specified in Articles 320 and 321 of the Criminal Code;
3. Offense of embezzlement specified in Article 335 and Paragraph 2 of Article 336 of the Criminal Code;
4. Offense of False Pretense specified in Articles 339 and 341 of the Criminal Code;
5. Offense of breach trust specified in Article 342 of the Criminal Code;
6. Offense of extortion specified in Article 346 of the Criminal Code;
7. Offense of swag specified in Paragraph 2 of Article 349 of the Criminal Code.

Article 377(Reasons for Appeal in the Third Instance (I) – Judgment in Contravention of Laws and Regulations)
Appeals to the court of third instance may only be filed where the judgment is in contravention of the laws and regulations.

Article 378(Meaning of in Contravention of Laws and Regulations)
A judgment which fails to apply rules or applies rules improperly is in contravention of the laws and regulations.

Article 379(Judgment Automatically in Contravention of the Laws and Regulations)
A judgment shall be on its face under the following circumstances:
1. Where the court is not organized in conformity with the laws;
2. Where a judge who should have disqualified himself/herself by operation of law or by decision has participated in making the decision;
3. Where the in camara trial is not pursuant to laws;
4. Where the court made an improper judgment on jurisdiction;
5. Where the court improperly hears or dismisses a case;
6. The trial took place on the date of hearing in the absence of the accused;
7. The trial took place in the absence of the advocate;
8. The trial took place without statement of the prosecutor or a private prosecutor in court;
9. Where the trial shall be suspended or start anew but is not suspended or started anew;
10. Where evidence to be investigated at the trial date is not investigated;
11. Where a defendant is not given opportunity to make his final statement;
12. Unless otherwise specified in the Code, where requested items are not adjudicated or where items not requested are adjudicated;
13. Where a non-participated judge is not involved in the making of the judgment;
14. Where no reasons are specified in the judgment or where ground of reasons specified are contradicting.

Article 380(Restrictions to Appeals to the Third Instance – Reasons for Appeal)
Besides situations specified in the preceding article, litigation process in contravention of the laws or regulations but obviously has no effects on the judgment may not be a reason for appeal.

Article 381(Reasons for Appeals to the Third Instance (II) – Punishment Amended, Abolished, or Remitted)
The abolishment, amendment, or remittance of punishments after the original judgment may be a reason for appeal.

Article 382(Appeal to the Third Instance)
Ground of reasons for appeal shall be set forth in a written pleading of appeal; those who fail to set forth the reasons may submit supplementary reasons in writing to the original court within 10 days since the appeal is filed; if fails to correct such defect, no submission shall be ordered.
Paragraph 2 of Article 350, Article 351 and Article 352 shall apply mutatis mutandis to the reason in writing specified in the preceding paragraph.

Article 383
(Written Defense)The opposing party may submit a written defense to the original trial court within 10 days since receiving the written appeal or the service of amended supplementary reasons in writing.
Where a prosecutor is the opposing party, he/she shall submit a written defense regarding the supplementary reasons for appeal.
Copies of the written defense shall be submitted; the clerk of original trial court shall serve those to the appellant.

Article 384(Original Trial Court’s Disposition against Illegal Appeals – Overrule by Ruling or Order Amendment)
The court shall overrule an appeal by ruling if it does not comply with legal formality, or it shall not be granted as a matter of law, or the right to appeal has lapsed; provided that where the deficiency in legal formality is amendable, the court shall order an amendment to be made within a prescribed period.

Article 385(Send the Case File and Exhibits to the Third Instance)
Except for situations listed in the preceding article, the original trial court shall promptly transmit the case dossier and exhibits to the prosecutor in court of third instance after receiving the written defense or the period for submitting a written defense has lapsed.
Once receives the case dossier and exhibits, the prosecutor in the court of third instance shall transmit the case dossier and exhibits along with an opinion in writing to the court of third instance in 7 days; provided that an opinion in writing may be omitted where the prosecutor has no other opinion regarding the written appeal or defense in writing sent by the prosecutor in the original trial court.
The original trial court shall transmit the case dossier and exhibits to the court of third instance where no prosecutor is a party in the appeal.

Article 386(Submitting Documents in Writing)
Before the court of third instance adjudicates the case, an appellant and opposing party may submit the reasons for appeal in writing, written defense, opinion, and amended supplementary reasons in writing to the court of third instance.
Copies of the document mentioned in the preceding paragraph shall be served to the opposing party by the clerk of court of third instance.

Article 387(Apply mutatis mutandis Trial Procedure in the First Instance)
Except otherwise stipulated in this Chapter, a trial in the third instance shall apply mutatis mutandis trial procedure in the first instance.

Article 388(Exemption to the Mandatory Defense)
Article 31 does not apply to a trail of third instance.

Article 389(Exceptions to Oral Hearing (III))
The court of third instance may be trial without oral argument; provided that the court may order arguments if necessary.
The argument prescribed in the preceding paragraph may only be conducted by an agent or defense attorney who is a lawyer.

Article 390(Commissioned Judge and Reports)
The court of third instance may appoint one associate judge to be the commissioned judge, in order to summarize the appeal and defense into a report.

Article 391(Report Recite and Appeal Statement)
On the trial date, the commissioned judge shall read aloud the report before the argument.
A prosecutor, agent, or defense attorney shall summarize the meaning of the appeal before the argument.

Article 392(One-Party Argument and No Argument)
On the trial date, if no agent or defense attorney of the defendant or private prosecutor appears, the judgment shall be pronounced after the prosecutor of the agent or defense attorney of opposing party makes a statement. If both the defendant and private prosecutor have not present or defense attorney appeared in court, the judgment may be pronounced without argument.

Article 393(Scope of Investigation in the Third Instance (I) – Ground of Reasons for Appeal)
Investigations by the court of third instance shall be limited to items listed in the reason of appeal; provided that such court may ex officio investigate evidence for the following items:
1. Situations listed in subparagraphs of Article 379 exist;
2. Whether causes for the exemption from prosecution exist;
3. The adequacy of law applications on established facts;
4. The punishment was abolished, amended, or remitted after the original judgment;
5. The defendant is pardoned or died after the original judgment.

Article 394(Scope of Investigation in the Third Instance (I) – Discovery)
Facts established in the judgment of second instance shall be the basis for judgment of the court of third instance; provided that a court may investigate facts on items related to the litigation procedure or muto proprio.
The investigation mentioned in the preceding paragraph may be conducted by a commissioned judge, and judges from other courts may be ordered to investigate.
If pursuant to results in the preceding two paragraphs, the prosecution violates regulations, the court of third instance may order it to be cured; where the court has no jurisdiction but later acquires jurisdiction pursuant to laws or regulations after the original judgment, it shall not be deemed to have no jurisdiction.

Article 395(Judgment for Illegal Appeals – Overrule by Ruling)
The court of third instance shall overrule an appeal by ruling if circumstances of Article 384 exist therein; the same rule applies where the reason for appeal in writing is not submitted within the period specified in Paragraph 1 of Article 382 and before the court of third instance adjudicates the case.

Article 396(Judgment for Meritless Appeals – Overrule by Ruling)
The court of third instance shall overrule an appeal by ruling if it finds such an appeal meritless.
The court may also pronounce a suspension of sentence under circumstance in the preceding paragraph.

Article 397(Judgments for Meritorious Appeals – Reverse the Original Judgment)
The court of third instance shall reverse the relevant portion of the original judgment upon finding the appeal meritorious.

Article 398(Reverse the Original Judgment (I) - Adjudication)
Where an original judgment is reversed pursuant to the following circumstances, the court of third instance shall adjudicate the case; provided that this rule does not apply to judgments to be made pursuant to the latter two articles:
1. Where in contravention of laws or regulations does not affect the finding of facts and can be the basis of judgment;
2. Where an exempt from prosecution or case dismissed shall be pronounced;
3. Where a circumstance under Subparagraph 4 or 5 of Article 393 exists.

Article 399(Reverse the Original Judgment (II) – Remand)
The court of third instance shall reverse and remand a case to the original trial court because such judgment were improperly decided based on “mistake in jurisdiction”, “exempt from prosecution” or “case dismissed”; provided that such a case can be remand to the court of first instance if necessary.

Article 400(Reverse the Original Judgment (III) –Trial Delivery)
The court of third instance shall remand the case to the competent court of second instance or court of first instance if the court of third instance reverse a judgment of original court because such judgment were improperly did not pronounce “exempt from prosecution”; provided that for cases listed in Article 4, once the original trial court with jurisdiction makes a judgment of second instance, it shall not be considered a mistake in jurisdiction.

Article 401(Reverse the Original Judgment (IV) – Remand or Trial Delivery)
Where the court of third instance reverses the original judgment for reasons other than situations listed in the preceding three articles, it shall remand the case to the original court or other court of the same level by ruling.

Article 402(Reverse the Original Judgment for Interests of the Defendant)
Where an original judgment is reversed for interests of the defendant, if the reasons for reversal also apply to co-defendants, the benefits shall apply to other co-defendants.