A defendant shall be punished by imprisonment for not less than five months.

A. The Defendant was unable to attend the trial of the lower court due to a cause not attributable to him. Therefore, the lower court’s judgment is justifiable for requesting a retrial under Article 23-2(1) of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings (hereinafter “Litigation Promotion”).

B. The 6-month punishment of imprisonment, which the court below decided against the defendant, is too unreasonable.

2. Ex officio determination

A. In a case where the defendant was found guilty due to his/her absence pursuant to the main sentence of Article 23 of the Litigation Promotion Act (hereinafter “the Special Provisions”), if the defendant was unable to attend a trial due to a cause not attributable to him/her, he/she may request a retrial for conviction pursuant to Article 23-2(1) of the Litigation Promotion Act (hereinafter “the Special Provisions”).

However, with respect to the judgment of the first instance, which became final and conclusive upon conviction without a defendant's statement pursuant to the special provisions of this case, where the defendant filed a petition for recovery of appeal on the grounds that the defendant or his agent could not file an appeal within the period for filing an appeal due to a cause not attributable to him/her, and where such cause includes circumstances in which the defendant could not be present in the trial due to a cause not attributable to him/her, it is reasonable to deem that the grounds for appeal corresponding to "when a cause for requesting a retrial exists" as prescribed in Article 361-5 subparagraph 13 of the Criminal Procedure Act is asserted by the provisions of this case.

Therefore, in the case above, the appellate court should examine whether the grounds for the request for retrial under the provisions of the retrial of this case exist, and there are such grounds.

If it is recognized, the judgment of the first instance court is reversed after the new litigation procedure is conducted, such as serving a duplicate of indictment, etc.