[2] In a case where the defendant was absent on the trial date of the court below, the prosecutor confirmed that the defendant was in contact with the defendant and submitted to the court below a written correction of address indicating the defendant's address as Gap's office, and later, Gap resigned from the court below and Eul newly was appointed as a defense counsel, the case holding that even if the court below sent a writ of summons, etc. as to the defendant's trial date to Gap office and received it by the employee of Gap office, the defendant's summons cannot be deemed to have been duly

[2] In a case where the defendant was absent on the trial date of the court below, the prosecutor confirmed that the defendant was in contact with the defendant and submitted to the court below a written correction of address indicating the defendant's address as Gap's office, and later the attorney Gap resigned and the attorney Gap newly appointed as Gap's counsel, the case holding that the court below erred by violating the law on the legal proceedings of the court below, on the ground that since the defendant's address as the defendant's address is not the place of service such as address, domicile, place of business or office, and the defendant's name under joint signature with the defendant pursuant to Article 60 of the Criminal Procedure Act does not constitute the place of service, and there is no other evidence to view that the court below did not constitute a legitimate place of service as to the defendant, and even if the defendant sent a written correction of the court date, etc. to Gap's office and received the defendant's summons, it cannot be deemed that the defendant

1. A. According to Articles 370 and 276 of the Criminal Procedure Act, the appellate court may not revise the law without the attendance of the defendant. However, according to Article 365 of the same Act, if the defendant does not appear in the court on the appellate trial date and the defendant does not appear in the court on the new trial date without justifiable grounds, the court may render a judgment without the statement of the defendant. Since a kind of punitive provision as to the failure to appear in court on the part of the defendant is a kind of punishment provision as to the failure to appear in court on the second trial date, if the defendant would be responsible for the failure to appear in court on two occasions, he need not attend the court on two occasions after receiving a writ of legitimate trial date and without justifiable grounds (see Supreme Court Decisions 8Do419, Dec. 27, 198; 2005Do9291, Feb. 23, 2006, etc.).

B. According to Article 183(1) of the Civil Procedure Act as applied mutatis mutandis under Article 65 of the Criminal Procedure Act, service shall be made at the place of service, such as the domicile, residence, place of business, office, etc. of the person to receive the service. Meanwhile, according to Article 60 of the Criminal Procedure Act, the defendant, who does not have the physical detention, does not have a dwelling or office at the seat of a court, shall report the person who has a dwelling or office at the seat of the court, who is appointed at the seat of the court, as “written document signed jointly.” Furthermore, regarding service, the receiver shall be regarded as the principal, and his dwelling or office shall be regarded as the principal’s dwelling or office, and the appointment of the receiver shall take

C. Articles 73, 74, and 76(1) of the Criminal Procedure Act provide that a writ of summons prepared in accordance with the legal method shall be served when the defendant summonss the defendant (Article 73, 74, and 76(1) of the Criminal Procedure Act), but when the defendant presents a document to the attendance on the designated date or orders the defendant to appear at the court on the next designated date, the detained defendant's summons notice through a correctional officer is recognized as having the same effect as the service of a writ of summons is recognized (Article 76(2) through (5), and Article 268 of the Criminal Procedure Act). In full view of the language and purport of the above relevant provisions, and the above provision, and the fact that the defendant orders the public prosecutor or defense counsel who has no obligation to attend the court date to summon the defendant, the summons of the defendant shall be based on the delivery of a writ of summons as prescribed by the Criminal Procedure Act or a method having the same effect as such, and other actual notification or notification by the court shall not be deemed legitimate (see Supreme Court Decision 20017Do16015).

2. The record reveals the following facts.

A. At the lower court, the Defendant appointed Nonindicted 1 as a defense counsel, and on December 16, 2016, the written appointment of a defense counsel was submitted to the lower court.

B. On December 20, 2016, the lower court sent a written notification of the receipt of the trial record to the Defendant and his/her defense counsel on December 20, 2016, and the defense counsel sent the written notification of the trial record on December 21, 2016, but the written notification of the trial record on the Defendant sent twice to the address indicated in the written indictment was not

C. On January 4, 2017, the prosecutor confirmed that the defendant wants to serve as a defense counsel’s office in currency with the defendant, and submitted to the court below a written correction of address that stated the defendant’s address as the above defense counsel’s office.

D. On January 5, 2017, the lower court sent the notification of the receipt of the trial record to the said defense counsel’s office, and received the notification by the said defense counsel on January 6, 2017.

E. However, after filing the statement of grounds of appeal on January 5, 2017, Nonindicted 1 resigned on July 27, 2017, which was before the date of the first trial date, and on July 28, 2017, a statement of appointment of counsel to the effect that the Defendant appointed Nonindicted 2 as a defense counsel was submitted to the lower court.

F. After appointment, Nonindicted 2 submitted an application for the change of the trial date three times, and the lower court also ordered the change of the trial date three times prior to the first trial date, and accordingly, the first trial date was finally changed to 5:00 on November 1, 2017.

G. The Defendant was absent on the first trial date ( November 1, 2017) and the second trial date ( October 10, 2018), and Nonindicted 2 resigned on February 5, 2018.

H. On March 13, 2018, the lower court appointed a public defender on March 13, 2018, and sentenced the judgment at the third trial date ( March 14, 2018) simultaneously with the closing of argument, and the Defendant was absent on the said trial date.

I. Meanwhile, all of the orders of summons and change of trial date of the court below on each trial date were served to the above non-indicted 1 attorney office, and the employee received it.

3. Examining these facts in light of the legal principles as seen earlier, the office of the non-indicted 1 attorney, which the prosecutor corrected as the defendant's address, is not the place of service, such as the defendant's domicile, domicile, place of business or office, and does not fall under the address of the receiver reported in writing by the defendant jointly with the consignee pursuant to Article 60 of the Criminal Procedure Act, and no other evidence exists to deem that it constitutes a legitimate place of service against the defendant. Therefore, even if the court below sent a writ of summons, etc. of the court date to the defendant to the above attorney's office and received by the employee

Nevertheless, the court below held that the service of a writ of summons, etc. against the defendant is valid, and concluded the pleadings and rendered a judgment by amending the trial date after the defendant was absent pursuant to Article 365 of the Criminal Procedure Act. This decision of the court below constitutes a case where the court below's measure is against the law concerning litigation procedures, such as Article 365 of the Criminal Procedure Act, and thereby affected the judgment.

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Jae-chul (Presiding Justice)