Considering an appeal after the first-instance judgment

• Do not count the sentencing date as the first day; count 7 days from the next day. If the last day is a Saturday or public holiday, the period runs to the next weekday (Criminal Procedure Act (형사소송법) Articles 66 and 358).
• Write down right away, as well as you remember, the order and the sentencing reasons the judge read out. The written judgment may come late, so this note is your first material for deciding whether to appeal.
• Apply for a certified copy of the judgment (Article 45).
• The prosecutor may also appeal, so check with the court after the 7 days have passed.
• If you waive or withdraw an appeal, you cannot appeal again (Articles 349 and 354), so do not rush to sign a waiver right after sentencing.

The notice of appeal (항소장) is filed not with the appellate court but with the first-instance court that gave the judgment (Article 359). It is enough for the notice to say you are appealing; you give the reasons later in a statement of reasons for appeal. If you are in a detention centre, submitting the notice to the warden within the period counts as meeting the deadline (Article 344).

When the record is sent to the appellate court, you receive a notice of receipt, and you must submit the statement of reasons for appeal (항소이유서) within 20 days of that day (Article 361-3). If you do not, the appeal is dismissed unless the notice of appeal stated reasons or there are grounds the court must examine on its own initiative (Article 361-4).

Common grounds of appeal are factual error (the facts were found wrongly), violation of law (the law was applied wrongly), and excessive sentence (the sentence is too heavy) (Article 361-5). The appellate court decides mainly on the grounds stated in the statement of reasons (Article 364). Rather than repeating what you said at first instance, point out where the reasoning of the first-instance judgment was wrong.

If a settlement was reached or the harm repaid after the first instance, that in itself is a major ground for arguing the sentence is excessive. At the Supreme Court stage, you cannot argue that the sentence is excessive unless you were sentenced to 10 years or more of imprisonment with or without labor (Article 383), so for most cases the appeal is effectively the last stage at which the facts and the sentence can be disputed.

In the statement of reasons, cite the page and sentence of the first-instance judgment and explain with evidence why that finding was wrong. Even for the same argument, you need to show what the first instance missed to give the appellate court a reason to look again.

In a case where only the defendant appealed, or an appeal was made on the defendant's behalf, the court cannot impose a heavier sentence than at first instance (Article 368). If the prosecutor also appealed, this limit does not apply and the sentence can become heavier.

If you withdraw the appeal, you cannot appeal again in the same case (Article 354). If you could not appeal within the period for reasons beyond your control, you can apply to restore the right of appeal (Article 345).

On appeal, you can still apply to submit new evidence and file sentencing materials. If there was no settlement at first instance, keep trying to compensate the victim until the appellate judgment and keep a record of your efforts. In cases disputing the facts, first-instance witnesses may be called again or new witnesses applied for. A detained defendant may be moved to a detention centre near the appellate court after the notice of receipt of the record, so let the family know in advance (Article 361-2(3)).

We look at the reasoning of the first-instance judgment and the record together and first tell you whether anything could change on appeal. If you decide to appeal, we file the notice of appeal within the deadline and write a statement of reasons that addresses the first-instance findings point by point. Settlement or repayment materials obtained after the first instance are organised and submitted as well. If you are detained, we visit you to hear your views before deciding.