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(영문) 서울동부지방법원 2018.07.27 2017노1471

사기

Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

An application for compensation by an applicant for compensation shall be dismissed.

Reasons

1. The grounds for appeal (unfair sentencing) by the lower court (in 6 months of imprisonment) are deemed to be too unhued and unreasonable.

2. According to the ex officio records, the lower court: (a) stated the Defendant’s decision to serve a public notice on July 19, 2017; (b) stated the Defendant’s writ of summons on January 17, 2017; (c) stated the Defendant’s failure to serve the notice as a closed door on February 8, 2017; and (d) stated the Defendant’s report on April 25, 2017 as Seoul Songpa-gu AL as the address at the time of service; (b) stated the Defendant’s statement on the first public trial date as “Seoul Songpa-gu AL103” and stated the Defendant’s statement on the ground of service on April 25, 2017 as the result of the investigation; and (c) stated that the Defendant’s report on the ground of contact with the Defendant on April 25, 2017 as the result of the investigation; and (c) stated that the Defendant’s report on the ground of service by the Defendant’s whereabouts as the result of the investigation on July 21, 201.

According to Article 23 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (hereinafter “Special Cases”), Article 19(1) of the Special Rules on the Promotion, etc. of Legal Proceedings (hereinafter “Special Rules”), the court of first instance may serve a public notice only when it is impossible to confirm the whereabouts of the accused by the lapse of six months from the date on which a report on the failure to serve on the accused was received in the trial proceedings.

In this context, the “six-month” period is the minimum period set in order to protect the defendant’s right to trial and the right to defend the attack, and thus, the court of first instance is not allowed to render a judgment without the defendant’s statement even after six months have not passed since the date of receipt of the report on the failure to serve on the defendant by the court of first instance (Supreme Court Decision 201 July 14, 2016)