업무상횡령등
All judgment of the court below shall be reversed.
A defendant shall be punished by imprisonment for not more than ten months.
1. The summary of the grounds for appeal (the first instance judgment: Imprisonment with prison labor for 8 months and the second instance judgment: one year) that the lower court pronounced is too unreasonable.
2. We examine ex officio prior to the judgment on the grounds for appeal ex officio.
A. According to the records, the lower court, at the second lower judgment, sent a copy, etc. of the indictment by public notice pursuant to Article 23 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings because the whereabouts of the Defendant cannot be confirmed, and sent a copy, etc. of the indictment to the Defendant on August 23, 2019 when the Defendant was absent, and sentenced one year to imprisonment on August 23, 2019. The Defendant asserted that on September 27, 2019, the lower court filed a claim for recovery of the right to appeal of the Defendant on October 4, 2019, the lower court rendered a decision to recover the Defendant’s right to appeal, and the said decision became final and conclusive, respectively.
According to the above facts of recognition, the defendant was unable to attend the trial of the court of the court of the court of the second instance due to a cause not attributable to himself. Thus, the court of the second instance recognized the grounds for a request for retrial under Article 23-2 of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings, which constitutes grounds for appeal prescribed in Article 361-5
Thus, the appellate court, as the appellate court, shall reverse the judgment of the second instance and render a new judgment according to the result of a new trial after conducting a new litigation procedure, such as delivering a copy, etc. of indictment, so the second judgment cannot be maintained as it is.
B. In addition, the defendant filed each appeal against the judgment of the court below and the pleading was combined at the trial. Since each crime of the judgment of the court below is a concurrent crime under the former part of Article 37 of the Criminal Act and a single punishment should be sentenced pursuant to Article 38(1) of the Criminal Act, the judgment of the court below that sentenced the above crime cannot be maintained any more.