1. According to the reasoning of the order of the court below, when the defendant-appellant was investigated at the prosecutor's office, he stated his address as 562-20, Gangseo-gu, Seoul Fire Fightingdong 562-20, which is not the place of resident registration, and entered in the protocol as it was recorded. After which the defendant-appellant was indicted for a summary trial, it was impossible to serve the above address in the process of trial and hearing by the judge's ex officio, and it was found that the defendant-appellant was not residing in the above address as a result of the police station's detection of the location, and service of resident registration address which was compiled in the investigation record was also impossible due to the unknown whereabouts between directors, the court of first instance sentenced the court to proceed with the trial by service by public notice and the appeal period and the final judgment became final. The service by service by public notice was legitimate, and the service by the above service by public notice was made as the address other than the original address and the subsequent change of resident registration address was made after his obligation to recognize the progress of the case.

2. However, according to Article 18(3) of the Enforcement Rule of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, in a case where the address of the defendant as stated in the indictment is not specified or the defendant does not reside in the recorded address at the time of prosecution, the presiding judge shall demand the public prosecutor to correct such address by fixing a reasonable period. As such, insofar as the defendant is acknowledged not to reside in the address as stated in the indictment, the court may not necessarily demand the public prosecutor to correct the address and immediately order service by publication without requiring correction, and such service by publication shall not be deemed unlawful.

Meanwhile, a claim for recovery of the right of appeal is allowed when the period of appeal is exceeded due to a cause not attributable to the person entitled to appeal. However, even if the defendant had made a public prosecutor's statement of address not residing at the time of prosecution and made the defendant enter his/her name in the indictment, if the defendant's telephone number other than the above address was given by informing him/her of the defendant's address, it is difficult to readily conclude that the failure of service by the defendant solely due to the

3. According to the records of this case, the first instance court served a copy of the indictment and a writ of summons of trial date on the re-appellant's address as stated in the indictment, but became impossible because the addressee was unknown, and it was commissioned to the chief of Gangseo-gu Police Station to find the location of the defendant's address, but there was a reply with the content that the re-appellant's address was not recorded in the Tong-gu and half registers and that his whereabouts cannot be known because the re-appellant did not have any other person, so the court's order of service by public notice was made and the re-appellant stated in the prosecutor's office's address

According to the above facts, the re-appellant was not residing in the address as stated in the indictment at the time of the prosecution. Thus, the first instance court's order for service by public notice without a name is not illegal even though the prosecutor demanded correction of address, and if it is possible to confirm the whereabouts of the re-appellant by the telephone number as stated by the prosecutor, it shall not be held liable for the above impossibility of service to the re-appellant.

Ultimately, the order of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench, since there is an error of law in the determination as to the legitimacy of service by public notice and the return of the re-appellant.

Justices Lee Il-young (Presiding Justice)