도로교통법위반(음주운전)등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than eight months.
1. Summary of grounds for appeal;
A. Since the existence of the grounds for a request for retrial was unable to attend the trial of the court below due to a cause not attributable to the defendant, the court below held that there is a ground for a request for retrial under Article 23-2 (1) of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings (hereinafter “Litigation Promotion”).
B. The sentence sentenced by the lower court to the Defendant (one year of imprisonment) is too unreasonable.
2. Determination on grounds for request for retrial
A. In a case where the defendant was found guilty due to his/her absence pursuant to the main sentence of Article 23 of the Litigation Promotion Act (hereinafter “Special Provisions”), if the defendant was unable to attend a trial due to a cause not attributable to him/her, he/she may request a retrial for conviction pursuant to Article 23-2(1) of the Litigation Promotion Act (hereinafter “Special Provisions”).
However, in accordance with the special provisions of this case, where the defendant filed a petition for recovery of his right of appeal for the reason that he could not file an appeal within the period of appeal due to a cause not attributable to the defendant or his representative without filing a request for reexamination pursuant to the provisions of the retrial of this case, if the grounds for appeal include circumstances in which the defendant could not be present in the trial due to a cause not attributable to him, it is reasonable to view that the grounds for appeal corresponding to the "when a cause for a request for reexamination exists" as provided in Article 361-5 subparagraph 13 of the Criminal Procedure Act is asserted by the provisions of the retrial of this case.
Therefore, in the above case, the appellate court should examine whether there are grounds for the request for retrial under the provisions of the review of this case, and there are such grounds.
If recognized, the judgment of the first instance court is followed by the service of a copy of the indictment, etc.