주거침입등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for six months.
However, the above punishment for a period of two years from the date this judgment became final and conclusive.
1. The decision of the court below on the gist of the reasons for appeal (six months of imprisonment) is too unreasonable.
2. Ex officio determination
A. In cases where a defendant filed a claim for recovery of his/her right of appeal against the judgment of the court of first instance, which became final and conclusive upon conviction without a defendant’s statement pursuant to Article 23 of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings, and where such grounds include circumstances in which the defendant could not be present at the trial due to a cause not attributable to him/her, it is reasonable to deem that there exist grounds for a request for retrial under Article 23-2(1) of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings. Thus, it is reasonable to deem that the grounds for appeal corresponding to “when there exists a cause for request for retrial”
Therefore, in the above case, the appellate court should examine whether there are grounds for the request for a retrial under Article 23-2(1) of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings, and there are such grounds.
If recognized, the judgment of the first instance court should be reversed, and a new judgment should be rendered in accordance with the result of the new trial, such as serving a duplicate of indictment, etc. (see Supreme Court Decision 2015Do8243, Nov. 26, 2015). (b) According to the records of the judgment, the following facts are recognized.
(1) The original court served a copy of the indictment, a writ of summons, etc. on the defendant by means of serving public notice pursuant to Article 23 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, etc., and sentenced the defendant to a judgment on November 16, 2016, after proceeding the trial in the absence
② On February 16, 2017, the Defendant submitted a written application for recovery of his/her right of appeal and a petition of appeal to the lower court. On February 27, 2017, the lower court recognized that the Defendant was unable to file an appeal within the period of appeal due to a cause not imputable to the Defendant, and rendered a decision to recover
In light of the legal principles as seen earlier, the above facts were publicly notified, and the Defendant was unaware of them.