공무집행방해
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than eight months.
1. A summary of the grounds for appeal (i.e., the defendant was unable to attend the trial in the original trial due to a cause not attributable to the defendant, and thus, it constitutes a case where there is a ground for the
Dodice Defendant was in the state of mental and physical weakness under the influence of alcohol at the time of the instant crime.
Article 22(1) of the Criminal Procedure Act provides that the sentence imposed by the first instance court (eight months of imprisonment) is too unreasonable.
2. Determination
A. As to the assertion that there is a ground for request for retrial, where a judgment of conviction becomes final and conclusive after having been convicted of the Defendant’s absence pursuant to the main sentence of Article 23 of the Act on Special Cases Concerning Promotion, etc. of Transmission (hereinafter “Special Provisions”), if the Defendant is unable to attend a trial due to a cause not attributable to him/her, he/she may request a retrial for conviction pursuant to Article 23-2(1) of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings (hereinafter “Rules for Review”).
However, with respect to the judgment of the first instance, which became final and conclusive upon conviction without a defendant's statement pursuant to the special provisions of this case, where the defendant filed a petition for recovery 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, and where such cause includes 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" as prescribed in Article 361-5 subparagraph 13 of the Criminal Procedure Act is asserted by the provisions of this case.
Therefore, the appellate court shall examine whether there are grounds for the request for retrial under the provisions of the retrial of this case, and there are such grounds.
If it is recognized, the judgment of the first instance court is reversed and the new result of the trial is followed by the service of a duplicate of indictment, etc.