전자금융거래법위반등
The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 5,000,000.
The above fine shall not be paid by the defendant.
1. The summary of the grounds for appeal (public prosecutor) of the lower court’s punishment (five million won in penalty amount) is too unhued and unreasonable.
2. Examination ex officio prior to the judgment on the grounds for appeal by the ex officio judgment.
A. Article 23 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings is a special case in the trial of the first instance, and where the whereabouts of the accused cannot be confirmed within six months from the date on which a report on the failure to serve on the accused was received at the trial of the first instance, the trial may be conducted without the statement of the accused, as prescribed by the Supreme Court Regulations
Provided, That this shall not apply to cases falling under death penalty, imprisonment with or without prison labor for life or for more than ten years.
Article 19(1) of the Special Rule on the Promotion, etc. of Legal Proceedings provides that "if the whereabouts of the defendant is not confirmed despite the measures under the provisions of Article 18(2) and (3) until six months have passed since the receipt of the report on the failure to serve on the defendant, the service on the defendant shall be made by means of public notice.
Article 23(2) of the Act provides that "When the accused has not been summoned on the date of trial pursuant to the provisions of paragraph (1) two or more times but has failed to appear, a trial may be held without the statement of the accused pursuant to the provisions of Article 23 of the Act.
“The above six-month period is the minimum period set for protecting the defendant’s right to claim a trial and right to defend an attack (see Supreme Court Decision 2003Do4983, Nov. 14, 2003). In addition, in order to serve a public notice under Article 19(1) of the Rules on Special Cases Concerning the Promotion, etc. of Legal Proceedings in cases where other cases are instituted against the same defendant during the course of trial, service of public notice for the same defendant shall be completed not only from the time of receipt of the report on the failure to serve as well as from the previous cases (see Supreme Court Decision 2011Do15236, Jan. 12, 2012). On the other hand, the first instance court is based on an illegal decision on public notice.