사기
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment with prison labor for not more than ten months.
1. The decision of the court below on the gist of the grounds for appeal (one hundred months of imprisonment) is too unreasonable.
2. We examine ex officio prior to the judgment on the grounds for ex officio appeal.
Article 23 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings and Article 18(2) and (3) and Article 19(1) of the Enforcement Rule of the Act provide that service to the accused shall be made by means of public notice when the location of the accused is not confirmed even though the accused has taken necessary measures to identify the whereabouts of the accused.
In addition, Article 63 (1) of the Criminal Procedure Act provides a notice service only when the dwelling, office, or present location of the defendant is unknown.
The Act stipulates.
Therefore, if other contact details of the defendant appear on the record, the court should confirm the place where the defendant will contact with the contact address and receive the service, and it is not allowed to promptly serve the service by means of public notice and make a judgment without the defendant's statement (see Supreme Court Decision 2011Do1094, May 13, 201). According to the records of this case, the following facts can be acknowledged:
① On January 20, 2016, the Defendant appeared on the first trial date and the second trial date was designated on February 26, 2016. However, on February 25, 2016, the Defendant submitted an application for extension of the trial date to request the change of the trial date on or after April.
(2) The Defendant did not appear on the second trial date which was held on June 15, 2016 and on the third trial date which was held on June 29, 2016.
On June 29, 2016, the lower court issued a arrest and detention warrant to the Defendant, and entrusted the detection of the Defendant’s location as “Seoul Seocho-gu apartment and Nho,” which is the domicile indicated in the indictment.
However, the head of the arrest and detention warrant have not been executed, and on January 23, 2017, the reply that the request for detection of the location did not reside in the above domicile was received.
The court below shall summon the defendant to the telephone number (O) of the defendant stated in the indictment.