A criminal appeal (항소) is the challenge to a first instance judgment heard by the second instance court. It is a distinct procedure from the final appeal (상고) to the Supreme Court, which follows it and is far narrower.
Foreign defendants lose appeals they would have won for one reason more than any other: the deadline passed while they were waiting for a document that was never coming.
→The Seven Days
Article 358 of the Criminal Procedure Act states the whole rule in one line: the period for filing an appeal is seven days.
It runs from the day judgment is pronounced in open court. It does not run from the day the written judgment is served on you, and it does not wait for a translation. If you were in the courtroom and heard the sentence through an interpreter, the clock started.
The notice of appeal (항소장) is filed with the court that gave the first instance judgment — not with the appellate court. Filing it in the wrong place while the seven days expire is a real way to lose an appeal.
The notice itself is short. It does not need to contain your arguments. Its only job is to preserve the appeal.
→The Second Clock
After the case moves up, the appellate court sends a notice of receipt of trial records (소송기록접수통지). From the day you receive that notice, you have twenty days to file the statement of grounds for appeal (항소이유서).
This is the document that actually argues the case. If it is not filed in time, the appeal can be dismissed without the merits ever being examined — the appeal was preserved and then abandoned by silence.
Two deadlines, two different starting points. Foreign defendants frequently collapse them into one and miss the second.
→What the Second Instance Court Reviews
An appeal is not a fresh trial from a blank page. The court works from the first instance record and examines the grounds you raise against it.
In practice the grounds fall into three groups:
- Mistake of fact — the court found something happened that the evidence does not support.
- Error of law — the facts were accepted correctly but the wrong legal conclusion was drawn from them.
- Unfair sentencing — the conviction stands, but the sentence is too heavy for what was found.
The third is the most commonly successful, and it is the one where work done after the first instance judgment still matters. A settlement agreement (합의서) reached with the victim after conviction, restitution actually paid, evidence of employment or family circumstances in Korea — these are received at the second instance and can move a sentence even when the findings of fact are not disturbed.
→Can the Sentence Get Worse
This is the first question most defendants ask, and the answer turns on who appealed.
Where the defendant alone has appealed, the principle of prohibition of disadvantageous alteration (불이익변경금지) applies: the second instance court cannot impose a sentence heavier than the one given at first instance. The downside risk is limited to losing.
Where the prosecution has also appealed, that protection does not operate. The court is free to increase the sentence. Whether the prosecution has appealed is therefore something to establish before deciding how to proceed, not after.
→Detention, Departure, and Status
An appeal does not by itself release a detained defendant, and it does not by itself suspend a departure ban (출국금지). Release during the appeal is a separate application, and bail (보석) is available at the second instance as well as the first.
For a foreign national the timing has a second edge. Immigration consequences — cancellation of status, deportation (강제퇴거), entry ban (입국금지) — generally attach to a conviction once it becomes final. While an appeal is properly pending, the conviction is not yet final, and that interval is often the only room available to arrange affairs, settle with a victim, or reduce a sentence below a threshold that triggers removal.
Appealing purely to delay is not a strategy and courts recognise it. But where there are real grounds, the fact that the immigration clock has not started is worth understanding before deciding.
→If the Seven Days Have Passed
There is a narrow route where the deadline was missed for a reason outside your control — a recovery of the right to appeal (상소권회복). It is not a second chance for a change of mind. The applicant has to show the failure was not attributable to them or to anyone acting for them.
Not receiving a translated copy of the judgment, or not understanding that the pronouncement started a clock, is rarely enough on its own. It is worth asking about, but it is not a substitute for filing on time.
If judgment was pronounced this week, the useful sequence is: file the notice of appeal (항소장) first, then work out whether the appeal is worth running. Preserving the right costs little. Recovering it after it lapses is a different and much harder application.