업무상횡령
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment with prison labor for four months.
1. The decision of the court below on the gist of the grounds for appeal (four months of imprisonment) is too unreasonable.
2. We examine ex officio prior to the judgment on the grounds for ex officio appeal.
On October 11, 2016, the lower court decided that the service of the defendant to the public notice shall be made by means of service, and on November 9, 2016, under Article 23 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings and Article 19 of the Enforcement Rule of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, the Defendant was punished by imprisonment with prison labor for four months on the following day.
On January 12, 2017, after the above judgment became formally final and conclusive, the defendant filed a petition for recovery of his right to appeal to the lower court. On January 19, 2017, the court recognized 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 to recover his right to appeal.
According to the above facts, there is no reason to assume that the defendant was unable to attend the trial of the court and there is a reason to request a retrial.
The judgment of the court below can no longer be maintained, since the public notice service decision is revoked in the trial and the copy, etc. of the indictment is served again, and all of the trial proceedings, including the examination of evidence, are newly progress.
3. The judgment of the court below is reversed ex officio as above. The judgment of the court below is reversed ex officio pursuant to Article 364 (2) of the Criminal Procedure Act, and it is again decided as follows.
[Re-written judgment] The summary of facts constituting an offense and evidence recognized by the court and the summary of the evidence are the same as the stated in each corresponding column of the judgment below, and thus, they are cited in accordance with Article 369 of the Criminal Procedure Act.
Application of Statutes
1. Relevant legal provisions of the Criminal Act, Articles 356 and 355 (1) of the Criminal Act (the point of occupational embezzlement) concerning criminal facts, and reasons for sentencing choice of imprisonment with prison labor;
1. Type 1 of the recommended punishment [the scope of the recommended punishment] on the sentencing criteria;