사기
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for six months.
1. The decision of the court below on the gist of the reasons for appeal (six months of imprisonment) is too unreasonable.
2. Ex officio determination
A. According to the record of recognition, the following facts are recognized.
1) On August 30, 2017, the lower court served a copy, etc. of the indictment on the method of serving public notice pursuant to Article 23 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings on the ground that the whereabouts of the Defendant cannot be confirmed, and sentenced the Defendant to six months imprisonment with prison labor, following the trial proceedings in the absence of the Defendant.
2) On September 13, 2017, the Defendant alleged to the effect that he/she was unaware of the fact that a public prosecution was instituted because he/she was unable to receive a copy, etc. of written indictment when claiming the recovery of his/her right to appeal, and on September 27, 2017, the court rendered a decision to recover the Defendant’s right to appeal by recognizing that the Defendant was unable to file an appeal within the appeal period due
B. According to the grounds for a request for the reinstatement of right of appeal filed by the defendant, it is reasonable to view that the defendant alleged that there are grounds for a request for retrial under Article 23-2 (1) of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings (hereinafter “the provisions for retrial of this case”), and that the defendant alleged grounds for appeal corresponding to “when there are grounds for a request for retrial” under Article 361-5 (13) of the Criminal Procedure Act is reasonable, and even according to the records, there are grounds for a
Recognized.
Therefore, the appellate court, as an appellate court, should reverse the judgment of the first instance court and render a new judgment in accordance with the result of the new trial following the new proceedings, such as delivering a copy, etc. of indictment again to the defendant (see, e.g., Supreme Court Decision 2015Do8243, Nov. 26, 2015). In this regard, the lower judgment was no longer maintained.
3. The judgment of the court below is based on the above reasons for reversal of authority. Thus, without examining the defendant's unfair argument of sentencing, Article 364 (2) of the Criminal Procedure Act is applicable.