[2] When the court in receipt of a request for recovery of the right to appeal issues a detention warrant after suspending execution of the sentence, and decides to dismiss the request for recovery of the right to appeal after which the defendant was detained, whether the whole or part of the detention days before the dismissal decision due to execution of the detention warrant by applying Article 57 of the Criminal Act mutatis mutandis should be included

1. The court below affirmed the first instance court's decision dismissing the claim for the recovery of the appeal of this case, on the grounds that the first instance court's decision was lawful to order the re-appellant to correct his address, and that the non-appellant was absent on the date of trial due to the lack of service of the copy of the indictment and a writ of summons of the trial date for the re-appellant, and that the non-appellant was served to the corrected address and the non-appellant was absent on the date of trial. Accordingly, the first instance court did not take necessary measures to ascertain the whereabouts of the re-appellant, such as issuing a detention warrant, and taking contact with telephone numbers indicated in investigation records, but its location was unknown. In the end, the first instance court sentenced the court's decision to proceed with the trial date by service by public notice and its final decision became final and conclusive, and on the grounds that the first instance court's decision was lawful, and there were no other circumstances to deem that the re-appellant could not file an appeal within the statutory period

2. However, it is difficult to accept the above measures by the court below for the following reasons.

In a case where the trial proceedings have been proceeded and sentenced while the defendant was absent by public notice, and the defendant was not aware of the facts of indictment and the remaining appeal period is not filed within the appeal period due to the relationship in which the defendant was not served with a copy of indictment, etc., it is reasonable to view that such appeal period is due to reasons not attributable to the defendant (see Supreme Court Order 83Mo37, 38, Feb. 23, 1985; Supreme Court Order 2003Mo447, Jan. 30, 2004, etc.).

However, according to the reasoning of the order of the court below, according to the report of the execution order of detention warrant submitted to the court of first instance, the second instance did only live in the address other than the mother of the re-appellant in which the copy, etc. of the indictment was served, and the re-appellant was living in the mother of Seoul after several years, and there was no contact contact with the re-appellant. Accordingly, even if the non-appellant was the mother of the re-appellant, the non-appellant cannot receive the copy, etc. of the indictment on behalf of the non-appellant who did not live together, and even if he received it, it cannot be deemed that the non-appellant was lawfully and effectively delivered a copy, etc. of the indictment to the non-appellant. In light of the above circumstances, it is reasonable to view that the re-appellant as the non-appellant did not file an appeal due to the relationship where the copy, etc. of the indictment was not served at the time of service of the copy of the indictment, etc. as well as the fact that the remaining appeal was not filed within the period of appeal.

Therefore, the order of the court below that maintained the decision of the court of first instance that rejected the petition for recovery of the right of appeal of this case on the ground that the re-appellant could not have filed an appeal within the appeal period due to a cause not attributable to the re-appellant is erroneous in the misapprehension of legal principles as to the claim for recovery of right of appeal of this case, and such

3. In addition, it is clear in the records that the first instance court suspended the execution of the sentence until the recovery of the right of appeal from the re-appellant was decided, and issued a detention warrant and detained the re-appellant. Thus, when the first instance court makes a decision to dismiss the request for recovery of the right of appeal from the re-appellant, the whole or part of the detention days prior to the execution of the detention warrant by applying Article 57 of the Criminal Act mutatis mutandis (see Supreme Court Order 96Mo44 delivered on July 16, 1996) should have been included in the original sentence (see Supreme Court Order 96Mo4 delivered on July 16, 1996). The court below maintained the first instance court decision that did not apply the above Act and did not include the above detention days in the original sentence

4. Therefore, the order 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 Kim Yong-dam (Presiding Justice)