[2] The case holding that the first instance court's order which served a copy of the indictment by means of service by public notice was unlawful where the first instance court's junior officer, etc. did not attempt to confirm the place of service while making telephone conversations with the Defendant for whom service was not yet possible and notified the attendance on the first instance court date simply without making such attempt to confirm the place of service, etc.

[3] In a case where a defendant summoned by public notice was absent on the first day of trial, whether the defendant can immediately proceed with the trial without the defendant's statement (negative)

[4] The case holding that the judgment of the court below which did not take measures to correct such illegality ex officio despite the first instance court's violation of law by serving a copy of the indictment and proceeding without the defendant's appearance on the first trial date due to illegal service by public notice

[2] The case holding that the first instance court's measure which served a copy of the indictment on the method of service by public notice violates Article 23 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, Article 18 and Article 19 of the Rules on Special Cases Concerning the Promotion, etc. of Legal Proceedings, etc., where the first instance court officer, etc. served a copy of the indictment to the place indicated in the indictment, but the defendant was already unable to serve two times due to the impossibility of being served on the defendant's cell phone calls and notifies the defendant of his appearance on the first instance court date without simply trying to confirm the place where the defendant can serve the documents.

[3] According to the provisions of Article 19(2) of the Regulation on Special Cases concerning Promotion, etc. of Legal Proceedings, even in cases where summons of the defendant against the defendant in the first instance trial by public notice is conducted, the court is required to have the defendant summoned by public notice for the trial without the defendant's statement two times or more in order to hold the trial without the defendant's statement. Therefore, if the defendant summoned by public notice is absent, the court may proceed with the trial proceedings in the absence of the defendant after designating a new trial date by public notice and re-satising the defendant by public notice.

[4] The case holding that the court below erred by misapprehending legal principles in holding that the prosecutor's appeal on the grounds of unfair sentencing based on the evidence investigated and adopted by the court of first instance without ex officio taking measures to correct the violation of the first instance court's illegality even though there was an error of law by serving a copy of indictment and a writ of summons of trial date based on the decision of illegal service by public notice and without attending the court of first instance

1. According to Article 63(1) of the Criminal Procedure Act, if the dwelling, office, or present address of the defendant is unknown, service by public notice may be made, and if the defendant is not a case corresponding to death penalty, life imprisonment, or imprisonment with or without prison labor for more than ten years in the first instance trial proceedings, Article 23 of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings, etc., and Articles 18 and 19 of the Rules on Special Cases Concerning Promotion, etc. of Legal Proceedings provide that service by public notice shall be made by public notice if the whereabouts of the defendant is not confirmed within six months after the receipt of the report on impossibility of service to the defendant even though the request for investigation, issuance of a detention warrant, or other necessary measures were taken in order to verify the whereabouts of the defendant. Therefore, if the defendant's home office, telephone number, cell phone number, etc. of the defendant appears in the record, service by public notice without taking such measures violates Article 63(1) of the Criminal Procedure Act and Article 23 of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings (see, 2016.).

In addition, according to Article 19(2) of the Rules on Special Cases concerning the Promotion, etc. of Legal Proceedings, even in cases where summons of the defendant against the defendant is made by public notice at the trial of the first instance, the court is required to be absent at least two times in order to proceed with the trial without the defendant's statement. Therefore, if the defendant summoned by public notice is absent, the court may proceed with the trial proceedings in the absence of the defendant only when the defendant is absent by public notice after designating a new trial date and re-satising the defendant by public notice (see Supreme Court Order 91Mo23, Dec. 17, 191).

2. According to the records, the first instance court served a duplicate of the indictment on the defendant's residence as "Gyeongcheon-si (hereinafter omitted)" which was recorded in the indictment, but it was impossible to serve the defendant two times due to the director's unknown, the first instance court called the defendant's cell phone number (the cell phone number omitted) on October 26, 2009, and notified the defendant to appear on the first instance court date without confirming the place where the defendant can receive documents. However, the first instance court commissioned the head of Youngcheon-gu Police Station having jurisdiction over the above dwelling on October 29, 2009 to find the location of the defendant on October 29, 2009, and on November 23, 2009, the chief of the first instance court ordered the defendant to appear on the second instance court date of 0 times as well as on October 20, 2009, and issued a summons of 100,0000 won to the defendant's first instance court's whereabouts on the date of trial."

In light of the above facts, service at the place in which the defendant's residence was written in the indictment was already impossible to be served twice because the director was unknown, so the first instance court, which called the cell phone phone of the defendant, should have tried to confirm the place where the defendant can be served. Nevertheless, the first instance court, without taking such measures, concluded that the defendant's residence, office, and present address cannot be known and served a duplicate of the indictment by means of public notice. Thus, the first instance court's measure violates Article 23 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, Articles 18 and 19 of the Rules on Special Cases Concerning the Promotion, etc. of Legal Proceedings, etc., and the first instance court's measure is also unlawful, and the first instance court proceedings are conducted while the defendant was absent on the first day of service by public notice. Accordingly, the first instance court proceedings are in violation of the law and thus affected the conclusion of the judgment.

As above, insofar as the first instance court served a copy of indictment and a writ of summons of trial date based on the illegal decision of service by public notice and deliberated and judged without the attendance of the defendant, it is unlawful to have the defendant provided an opportunity to attend the trial proceedings. Meanwhile, as to the grounds affecting the judgment, even if not included in the grounds of appeal, the court of appeals may ex officio decide on the grounds that affect the judgment. Thus, the court below should have taken measures to rectify the illegality of the first instance court ex officio, even if only the prosecutor appealed on the grounds that the judgment was unreasonable. In other words, the court below should reverse the judgment of the first instance court which was unlawful after the new procedural acts were conducted by legitimate procedure

Nevertheless, the court below determined the grounds for appeal by the prosecutor based on the evidence examined and adopted by the court of first instance with excessive illegality as above. Accordingly, the court below erred by misapprehending the legal principles on the validity of procedural acts conducted without the defendant's statement by public notice, which affected the conclusion of the judgment.

The ground of appeal pointing this out is with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)