폭력행위등처벌에관한법률위반(공동폭행)등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment with prison labor for not more than ten months.
1. The sentence imposed by the court below (one year of imprisonment) on the summary of the grounds for appeal is too unreasonable.
2. We examine ex officio prior to the judgment on the grounds for appeal ex officio. According to the records, the court of original judgment served a copy of the indictment and a writ of summons by public notice pursuant to Article 23 of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings, and sentenced one year to imprisonment by conducting deliberation in the state of absence of the defendant. The defendant asserted that he was unaware of the fact that he was not aware of the fact that he was prosecuted since he was unable to receive a copy of indictment, etc. as to the judgment of the court below formally finalized. The court of original judgment recognized that the defendant was unable to appeal within the appeal period due to a cause not attributable to the defendant, and decided to recover the right to appeal, and recognized the fact that the prosecutor's appeal and reappeal against
According to this, it is recognized that there are grounds for a request for retrial under Article 23-2 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings because the defendant was not responsible for failing to attend the trial of the court below, and this constitutes "when there are grounds for request for retrial" under Article 361-5
(see, e.g., Supreme Court Decision 2015Do8243, Nov. 26, 2015). Therefore, this Court has to proceed with new litigation procedures and render a new judgment according to the result of a new trial by delivering a copy, etc. of indictment to the Defendant. As such, the lower judgment was unable to be maintained.
3. Accordingly, the judgment of the court below is reversed in accordance with Article 364 (2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and the judgment below is again decided as follows after oral argument.
[Discied reasoning of the judgment below] Criminal facts and summary of evidence recognized by this court and summary of evidence are the judgment below.