1. According to the special provisions of Article 23 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings and the text and legislative intent of the provisions of Article 23-2 of the same Act, even in a case where only the prosecutor appealeds against the first instance trial conducted without the absence of the defendant pursuant to the above special provisions, and the appellate court also dismissed the prosecutor’s appeal after the non-appearance of the defendant and thereby the first instance judgment became final and conclusive, the defendant, who was unable to attend the first instance trial and the appellate court’s trial without any reason, may file a request for a retrial of the conviction with the court of first instance within the period prescribed by the above special provisions.

must be viewed.

In such a case, if the defendant filed an appeal through the recovery of the right to appeal without requesting a retrial, this constitutes “when there is a ground for request for retrial” as prescribed by Article 383 subparag. 3 of the Criminal Procedure Act, and thus, the judgment of the court below can be reversed or copied.

Upon remanding the case that is reversed for the foregoing reason, the lower court, which proceed with the appellate trial procedure, has the grounds for a request for retrial corresponding to the grounds for appeal under Article 361-5 subparag. 13 of the Criminal Procedure Act, deemed that the ground for ex officio reversal falls under the grounds for ex officio reversal, and further proceed with the new litigation procedure, such as serving a copy of indictment, etc., and further rendering a judgment according to the results of the new trial (see, e.g., Supreme Court Decisions 2014Do17252, Jun. 25, 2015; 2016Do11228, Dec. 29, 2016).

(1) The first instance court served a copy of the indictment and a writ of summons by means of public notice service pursuant to the above special provisions, and tried to hold hearings in the absence of the Defendant and sentenced the Defendant to one year of imprisonment.

(2) When the prosecutor appeals the amount of punishment unfairly, the court below served a writ of summons, etc. by means of serving public notice and Article 365 of the Criminal Procedure Act.