게임산업진흥에관한법률위반
The judgment of the court below is reversed.
Defendant shall be punished by a fine of five million won.
The above fine shall not be paid by the defendant.
1. The decision of the court below on the summary of the grounds for appeal (a fine of five million won and confiscation) is too unreasonable.
2. We examine ex officio prior to the judgment on the grounds for appeal ex officio.
A. Review of the record of recognition reveals the following facts.
① On October 14, 2016, the lower court determined that the service of the Defendant was made by public notice, and rendered a judgment on November 17, 2016 that the Defendant’s investigation of evidence was conducted without his/her presence pursuant to Article 23 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, etc., and on November 29, 2016, the lower court sentenced that the Defendant’s fine of KRW 5 million and the seized evidence Nos. 16 through 20 shall be confiscated.
② On August 16, 2017, the appellate court also served a writ of summons, etc. to the defendant by means of service, and tried in the absence of the defendant pursuant to Article 365(2) of the Criminal Procedure Act. On August 16, 2017, the appellate court rendered a judgment dismissing the prosecutor’s appeal (Supplementary District Court 2016No4983, Sept. 30, 2017). The said judgment became final and conclusive on September 30, 2017.
③ However, on October 8, 2019, the Defendant filed a request for the restoration of the right to appeal with the court of the lower court to submit a request for formal trial. On October 18, 2019, the lower court recognized that the 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.
B. 1) As to the judgment of the court of first instance, the appellate court cannot render a judgment again by proceeding the appellate court proceedings, except where the case is remanded or transferred from the court of final appeal after the defendant or prosecutor appealeds the judgment and the appellate court has rendered a judgment.
Therefore, upon the judgment of the appellate court, the right to appeal against the judgment of the court of first instance is extinguished, and the right to appeal against the judgment of the court of first instance cannot be deemed lawful.
This is a special law on the promotion of litigation in the court of first instance or the appellate trial.