사기
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment with prison labor for up to six months.
1. The decision of the court below on the gist of the grounds for appeal (six months of imprisonment) is too unreasonable.
2. Examination ex officio prior to the judgment on the grounds for appeal by the defendant
Article 23 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings and Articles 18(2) and (3), and 19(1) of the Enforcement Rule of the same Act provide that, if the location of the defendant is not verified even though the defendant took necessary measures to confirm the location of the defendant, service by public notice shall be made after six months from the date on which the report on the impossibility of service was received, and Article 63(1) of the Criminal Procedure Act provides that service by public notice may be made only when the dwelling, office, or present location of the defendant is unknown.
The Act stipulates.
Therefore, in the event that the actual residence, place of work, office phone number, mobile phone number, etc. of a defendant appears on the record, an attempt shall be made to deliver them to such actual residence, etc., or to confirm the place to be served by contact with telephone number, etc., and it is not allowed to serve them by means of public notice without taking such measures and render a judgment without the statement of the defendant (see, e.g., Supreme Court Decision 201Do662, Jul. 28, 2011). The following facts are acknowledged according to the records of this case.
① The court of the original instance served the documents of lawsuit, such as a duplicate of indictment, on the Seo-gu, Seo-gu, Gwangju, which is the Defendant’s residence stated in the indictment, on May 7, 2015.
② On May 11, 2015, the court of the original instance called the phone number of the defendant as stated in the indictment, but the defendant did not receive the phone number.
However, the court of the court below did not look at the defendant's changed mobile phone number in the 76th page of the investigation record.
(3) When the defendant was not present on the date of the first trial, the court of the original instance requested the prosecutor to supplement his address.