병역법위반
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for six months.
1. The summary of the reasons for appeal (six months of imprisonment) by the lower court is too unreasonable.
2. We examine the legality of the decision of the court below by public notice ex officio.
A. Article 23 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings and Articles 18(2) and (3) and 19(1) of the Enforcement Rule of the same Act provide that, when the whereabouts of the defendant is not verified even though the defendant was taken necessary measures to confirm the whereabouts of the defendant, service by public notice shall be made in the latter case. Article 63(1) of the Criminal Procedure Act provides that service by public notice shall be made only when the dwelling, office, or present location of the defendant is unknown. Thus, if other contact numbers of the defendant appear in the record, service by public notice shall be conducted immediately without taking such measures, and it shall not be permitted to serve by public notice and render a judgment without the defendant's statement.
(see, e.g., Supreme Court Decisions 2006Do3892, Jul. 12, 2007; 201Do6762, Jul. 28, 2011). (B)
According to the records of this case, the police interrogation protocol (the investigative record 29 pages) of the defendant stated the "E and Jeju F" as the defendant's workplace at the defendant's workplace, and the accusation protocol (the investigative record 15 pages) contains the contact information of the defendant's mother as the contact information of the defendant's mother.
C. In light of the legal principles as seen earlier, the lower court, prior to rendering the decision of service by public notice, concluded that the Defendant’s whereabouts cannot be confirmed immediately without taking such measures, and served documents related to the lawsuit, such as the Defendant’s summons, by means of service, on the grounds that the Defendant’s whereabouts should be determined by serving the police interrogation protocol prior to making the decision of service by public notice, or attempted to contact the Defendant’s mother’s relatives.