야간주거침입절도미수
All judgment of the court below shall be reversed.
A defendant shall be punished by imprisonment for not more than ten months.
Seized evidence Nos. 1 and 2 shall be confiscated.
1. The decision of the court below (No. 1: imprisonment with prison labor for 6 months and 2 months: imprisonment with prison labor for 6 months) is too unreasonable.
2. Ex officio determination
A. According to the records of this case, (1) the court of original judgment sent a copy of indictment and a writ of summons of the defendant, etc. by means of serving public notice pursuant to Article 23 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings and sentenced the defendant to six months of imprisonment by conducting deliberation in the absence of the defendant. (2) When the defendant is arrested by the execution of punishment in accordance with the judgment of the court of first instance which became formally final and conclusive, the defendant applied for recovery of his right of appeal immediately, and argued to the effect that he was unaware of the fact that he was unable to receive a copy of indictment, a writ of summons of the defendant, etc. from the court due to his failure to reside in his domicile in his resident registration, and (3) The court of first instance recognized that the defendant was unable to appeal within the period of appeal
Thus, barring any other circumstance, there is a ground to request a retrial under the Special Act on the Promotion, etc. of Litigation due to the defendant's failure to attend the trial of the court of first instance to the trial.
Recognizing that the appellate court, as the appellate court, newly conducted procedural acts by delivering a copy of indictment to the defendant, etc., the lower court’s judgment is reversed, and the judgment is to be rendered again according to the results of the trial, such as statement and examination of evidence, etc. in the trial (see Supreme Court Decisions 2015Do8243, Nov. 26, 2015; 2014Do17252, Jun. 25, 2015; 2014Do17252, Jun. 25, 2015, etc.). In this regard, the lower court’s judgment was no longer maintained.
B. In addition, this Court tried to combine each appeal case against the defendant against the defendant against the judgment of the court below 1 and 2, and on the other hand, each of the above judgments of the court below is a concurrent offense relationship under the former part of Article 37 of the Criminal Act, and Article 38 (1) of the Criminal Act is applicable.