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(영문) 부산지방법원 2017.01.19 2016노1518

사기

Text

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 2,000,000.

The defendant does not pay the above fine.

Reasons

1. The sentence of a fine of KRW 2 million sentenced by the original judgment on the summary of the grounds for appeal is too unfasible and unreasonable.

2. We examine ex officio the grounds for appeal by the prosecutor ex officio.

According to Article 23 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings and Article 19(1) of the Enforcement Rule thereof, it is necessary to serve a public notice only when the defendant's location is not confirmed within six months from the receipt of a report on the failure to serve on the defendant, even though he/she has taken necessary measures to identify the defendant's whereabouts.

In this regard, in light of the fact that the above six-month period is the minimum period established to protect the defendant's right to trial, attack and defense, the "when a report on the impossibility of service is received", which serves as the starting point, shall be strictly interpreted.

Therefore, the service of a writ of summons to the defendant's address was impossible.

Even if a writ of summons has been served on the same defendant at the same place after the date, it shall not be calculated for six months under the Act on Special Cases (see Supreme Court Decision 2011Do7570, Mar. 29, 2012). According to the records, the court below did not serve the defendant with an identification of the addressee on Aug. 3, 2015, but it was served with the defendant on Aug. 26, 2015 and Oct. 14, 2015, but the defendant failed to appear at the trial date on two occasions, and the court below failed to again request the defendant to deliver a writ of summons to the public prosecutor on the ground that it was impossible to deliver the original defendant or to detect the whereabouts of the defendant, and the court below did not request the defendant to return the defendant to the public prosecutor on Nov. 4, 2015, and requested the defendant to deliver the warrant of detention to the public prosecutor on the ground that the court below issued the warrant of detention on Aug. 26, 2015.