건조물침입등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than eight months.
1. The sentence of the lower court (one-year imprisonment) is too unreasonable as to the gist of the grounds for appeal.
2. We examine ex officio prior to the judgment on the grounds for ex officio appeal.
On July 25, 2017, the lower court determined that the service of the defendant to the public notice shall be made by serving the public notice, and on September 27, 2017, under Article 23 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings and Article 19 of the Enforcement Rule of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, the lower court sentenced the defendant to one year imprisonment on November 10, 2017, where the defendant did not appear.
On December 5, 2017, after the above judgment became formally final and conclusive, Defendant filed a petition for recovery of the right to appeal to the lower court. On December 14, 2017, the lower court recognized that Defendant was unable to file an appeal within the appeal period due to a cause not attributable to the Defendant, and rendered a decision to recover the right to appeal.
According to the above facts, there is no reason to assume that the defendant was unable to attend the trial of the court and there is a reason to request a retrial.
The judgment of the court below can no longer be maintained, since the public notice service decision is revoked in the trial and the copy, etc. of the indictment is served again, and all of the trial proceedings, including the examination of evidence, are newly progress.
3. The judgment of the court below is reversed ex officio on the ground that there is a ground for reversal of the above authority, and the judgment of the court below is reversed ex officio pursuant to Article 364(2) of the Criminal Procedure Act, and it is again decided as follows.
[Re-written judgment] The criminal facts and the summary of the evidence acknowledged by the court, and the summary of the evidence, are identical to each corresponding column of the judgment of the court below, in addition to changing "victim C" to "victim H" and adding "1. Defendant's legal statement" to the summary of the evidence, and thus, they are cited as it is in accordance with Article 369 of the Criminal Procedure Act.
Application of Statutes
1. Relevant Articles of the Act and punishment concerning the facts constituting the crime;