[2] The case holding that in a case where the appellate court rendered a judgment without the defendant's statement when the summons of the trial date was not served for the same reason after the order to change the trial date was not served by the defendant because the director was not known, this constitutes a violation of Article 3

1. According to Articles 370 and 276 of the Criminal Procedure Act, the appellate court may not open the court without the attendance of the defendant. However, according to Article 365 of the same Act, if the defendant does not appear in the court on the appellate trial date and if the defendant does not appear in the court on the new trial date without any justifiable reason, the court may decide without the defendant's statement. However, since the defendant's neglect to appear in the court on two occasions, if the defendant intends to assume the responsibility of non-appearance on two occasions, he need not attend the court without justifiable reasons (see Supreme Court Decisions 88Do419, Dec. 27, 198; 2005Do9291, Feb. 23, 2006; 2008Do2876, Jun. 26, 2008, etc.).

2. According to the records, the defendant appeared at the second and third court date of the court below, and thereafter, the fourth court date was changed from March 21, 2008 to April 11, 2008 upon the defendant's application for postponement, and the order to change the court date was not served with director's unknown. The defendant did not appear on the fourth court date. The court below designated and notified the fifth court date on May 2, 2008 on the fourth court date. The court below sent a writ of summons to the defendant on May 2, 2008, and was not served with director's unknown. The court below concluded the trial on the fifth court date without the defendant's appearance on May 16, 2008 and designated the sixth court date on May 16, 2008. In light of the above legal principles, the court below's decision to dismiss the defendant's appeal without the defendant's appearance on the fifth court date, which affected the conclusion of the judgment, and thus constitutes a violation of Article 365 of the Criminal Procedure Act.

3. Therefore, the ground of appeal assigning this error is with merit, and the judgment of the court below is reversed without examining the remaining grounds of appeal, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)