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(영문) 대전지방법원 2016.09.22 2016노2167

폭력행위등처벌에관한법률위반(집단ㆍ흉기등상해)

Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

However, the above punishment for a period of two years from the date this judgment became final and conclusive.

Reasons

1. The decision of the court below (one year of imprisonment) against the defendant on the summary of the grounds for appeal (unfair sentencing) is too unreasonable.

2. We examine ex officio prior to the judgment on the grounds for appeal by the defendant.

According to Article 63(1) of the Criminal Procedure Act, service on public notice to the accused may be conducted only when the address, office, and present address of the accused are unknown. Thus, in the case where contact address, etc. of the accused appears on the record, an attempt should be made to contact with the contact address, such as contact point, and promptly serve service by means of public notice without taking such measures is not permitted as it violates Article 63(1) of the Criminal Procedure Act and Article 23 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (Supreme Court Decision 2012Do4963 Decided July 12, 2012). According to the records, the court below ordered the prosecutor to correct the defendant's address as he did not serve on the defendant and ordered the prosecutor to correct the defendant's address. The prosecutor stated the defendant's mobile phone number as "H" in the indictment, but the court below, without seeking contact with the above telephone number, served the defendant by issuing a writ of summons to the defendant and serving it on the date of public trial without the amendment.

Therefore, the court below took necessary measures to confirm the location of the defendant.

As such, this case cannot be seen as falling under “when the dwelling, office, or present position of the defendant is unknown,” which is the requirement for public notice delivery, and the court below's decision proceeding without any justifiable reasons after serving a writ of summons to the defendant according to the method of public notice delivery, and making a judgment without the defendant's statement.