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  • Interpretation
  • No.135
  • Date
  • 1973/06/22
  • Issue
    • In a civil or criminal action where the judgment of a lower court is erroneously reversed, vacated, or remanded by a court of appeal, may the party file an appeal, motion for a new trial, or petition for extraordinary appeal, or seek other legal remedies?
  • Holding
    •        In a civil or criminal action where the judgment of a lower court is erroneously reversed, vacated, or remanded for further proceeding by a court of appeal despite the fact that no objection to such lower court judgment has been raised or, even though an objection has been raised, the judgment is not legally objectionable, the decision entered by the court of appeal or the decision rendered upon such further proceeding constitutes a material violation of the law and shall be null and void. Such decision being a judgment pro forma, however, the matter may be dealt with pursuant to such legal proceedings as appeal, new trial, and extraordinary appeal, and other legal remedies.
  • Reasoning
    •        In a civil or criminal action where a party raises an objection to the judgment of the lower court in spite of the law that no objection is permissible to such judgment, and the appellate court, which is bound to dismiss the appeal under Article 444 of the Code of Civil Procedure or, as the case may require, Articles 367 and 395 of the Code of Criminal Procedure, has erred in reversing or remanding such lower court judgment, or has so erred in the absence of any objection made to the lower court judgment, the decision entered by the court of appeal or the decision rendered upon further proceeding constitutes a material violation of the law and shall be null and void. Such decision being a judgment pro forma, however, the matter may be dealt with pursuant to appeal procedure if the judgment has not become irrevocable or following such procedures as a new trial, extraordinary appeal, and other legal remedies if the judgment has become irrevocable. 
      
    • *Translated by Raymond T. Chu.
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