사기미수
The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 3,000,000.
The above fine shall not be paid by the defendant.
1. The main point of the grounds for appeal is that the lower court’s punishment (three million won of fine) is too unreasonable.
2. Articles 458(2) and 365(2) of the Criminal Procedure Act provide that when the defendant who has requested a formal trial fails to appear on the date of trial of the formal trial procedure, the date shall be fixed again, and where the defendant fails to appear on the new date without justifiable grounds, a judgment may be rendered without the defendant's statement.
However, the lower court, on November 29, 2013, rendered an examination of evidence by amending the Criminal Procedure Act without a defendant's appearance in the court on the second trial date, although the defendant was present on the first trial date on December 20, 2013 and the defendant was absent on two consecutive occasions on December 20, 2013, did not constitute the case where the defendant was absent on two consecutive occasions. This is deemed unlawful as it violates Articles 458(2) and 365(2) of the Criminal Procedure Act.
In addition, in cases where the service of documents becomes impossible, it shall be deemed that the defendant tried to find a place where the defendant can be served, such as serving documents on the actual place of residence recorded in the record prior to the decision of service by public notice, or confirming telephone numbers, etc., and it is unlawful to serve documents by public notice and render a judgment without the defendant's statement without taking such measures (see, e.g., Supreme Court Decision 2004Do7145, Feb. 25, 2005). The court below concluded that the defendant's whereabouts cannot be known without taking measures to identify the defendant's whereabouts, such as contact with the above telephone number, and after serving a writ of summons by public notice, the defendant was tried and rendered without his/her attendance.
Therefore, since the court below cannot be said to have taken necessary measures to confirm the location of the defendant, this case shows the dwelling, office and present location of the defendant, which is the requirement of service by public notice.