업무상횡령등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not more than ten months.
1. The summary of the grounds for appeal (unfair sentencing) of the lower court’s punishment (one year of imprisonment) is too unreasonable.
2. As to the judgment of the first instance court rendered guilty without a defendant's statement pursuant to Article 23 of the Act on Special Cases concerning Promotion, etc. of Ex officio Judgment, in cases where the defendant filed a petition for recovery of his/her right of appeal on the grounds that the defendant or his/her representative could not file an appeal within the period for filing an appeal due to a cause not attributable to him/her, if the grounds include circumstances in which the defendant could not be present in the trial due to a cause not attributable to him/her, it is reasonable to deem that the grounds for appeal corresponding to "when a cause for requesting a retrial exists" under Article 361-5 subparagraph 13 of the Criminal Procedure Act are asserted.
Therefore, the appellate court should examine whether there are grounds for the request for retrial under the provisions of the retrial.
If recognition is made, the judgment of the first instance court shall be reversed, and a new judgment shall be rendered in accordance with the result of the new trial (Supreme Court Decision 2015Do8243 Decided November 26, 2015). According to records, the court of original judgment shall serve a writ of summons, etc. by means of public notice pursuant to Article 23 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings and shall conduct hearings in the absence of the defendant on April 28, 2016. The defendant filed a petition for recovery of the right to appeal against the judgment of the court below on August 21, 2020. The court of original judgment recognized on October 12, 2020 that the defendant was unable to file an appeal within the appeal period due to a cause not attributable to the defendant and rendered a decision of recovery of the right to appeal (Seoul Southern District Court Decision 2020 early 1239).
According to the above facts of recognition, the judgment of the court below is erroneous as the defendant was unable to attend the trial of the court below.