도로교통법위반(음주운전)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for six months.
1. The sentence imposed by the court below (six months of imprisonment) is too unreasonable.
2. Ex officio determination
A. We examine ex officio prior to the judgment on the grounds for appeal by the defendant.
B. According to Article 63(1) of the Criminal Procedure Act, if the dwelling, office, or present address of the defendant is unknown, service by public notice may be made. Article 23 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, Article 18 and Article 19 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings does not apply to death penalty, life imprisonment, or imprisonment with or without prison labor exceeding ten years for more than ten years in the trial of the first instance, if the whereabouts of the defendant is not confirmed by public notice after six months have passed since the receipt of the report on the impossibility of service by public notice even though the request for investigation of location, issuance of arrest warrant,
Therefore, if the defendant's office telephone number or mobile phone number appears on the record, it is necessary to have an attempt to contact the above telephone number with the location of service and to see the place of service, and to promptly serve by public notice without taking such measures is in violation of Article 63(1) of the Criminal Procedure Act and Article 23 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings.
(see, e.g., Supreme Court Decisions 2006Do3892, Jul. 12, 2007; 201Do1094, May 13, 2011).
According to the records, the lower court served a copy, etc. of the indictment on the Defendant’s residence “F of Changwon-gu, Changwon-si,” which is the Defendant’s residence as stated in the indictment, but was not served on September 2, 2013, Oct. 10, 2013, and December 5, 2013 due to the addressee’s unknown whereabouts, etc.; ② the lower court attempted to make a telephone call to the Defendant’s cell phone number as stated in the indictment on December 2, 2013, but the said cell phone number was turned down, and on December 27, 2013, the Defendant’s cell phone number was set at the Changwon-gu Police Station of Changwon-gu, Seoul-gu.