도로교통법위반(음주운전)등
The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 7,000,000.
The defendant does not pay the above fine.
1. The punishment of a fine of KRW 7 million sentenced by the original judgment on the summary of the grounds for appeal is too unreasonable.
2. Examination ex officio prior to the judgment on the grounds for appeal by the defendant.
Article 276 of the Criminal Procedure Act provides that if the defendant fails to appear at the trial date, the court shall not open unless there is a special provision.
Meanwhile, Article 365 of the Criminal Procedure Act, which applies mutatis mutandis to a formal trial procedure pursuant to Article 458 (2) of the same Act, provides that if a defendant fails to appear on the date of a public trial, a new date shall be set and the defendant may be judged without any justifiable reason if the defendant fails to appear on the new date without any justifiable reason, but this is a kind of restrictive provision which is deemed to waive the right of pleading on the merits by the defendant's neglect. Thus, if the defendant seeks to assume the responsibility for the second absence on two occasions, he/she need not appear in the court without justifiable grounds after receiving a writ of summons of due public trial date (see Supreme Court Decision 2008Do5508, Sept. 25, 2008, etc.). In addition, according to Articles 73, 74, and 76 of the Criminal Procedure Act, the summons of the defendant must be issued with the entry of the specific matters prescribed in Article 74 of the same Act and a writ of summons with the presiding judge, etc.
According to the records, on May 17, 2016, the lower court determined the date of the second public trial on June 9, 2016, when the Defendant was not present on the date of the second public trial on May 17, 2016, and attempted to serve the Defendant a writ of summons on the second public trial date on June 9, 2016, but failed to serve the second public trial date on May 24, 2016. However, on June 7, 2016, the Defendant was notified of summons on the second public trial date on the cell phone of the Defendant on June 9, 2016, and the lower court thereafter notified the second public trial date under Articles 458(2) and 365 of the Criminal Procedure Act while the Defendant was absent on the second public trial date on June 9, 2016.