[2] The case holding that the court below's decision that found the defendant guilty by proceeding the trial without taking any measure such as re-service of the summons of the court date was unlawful in violation of Article 365 of the Criminal Procedure Act, even though the defendant summoned the defendant on the court date because he was absent

1. According to Articles 370 and 276 of the Criminal Procedure Act, the appellate court may not open the court 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 decide without the defendant's statement if the defendant does not appear in the court on the new trial date without justifiable grounds. However, this is a kind of punitive provision which considers that the defendant gives up his right to pleading the merits due to the defendant's neglect. Thus, if the defendant intends to assume the responsibility for the second absence on two occasions, he need not appear in the court without justifiable grounds after receiving a writ of summons of legitimate trial date (see Supreme Court Decision 8Do419, Dec. 27, 198

2. According to the records, the defendant filed an appeal against the judgment of the court of first instance, which sentenced a 6-month imprisonment, and submitted a report of change of address. The court below found that the defendant was absent on the third court date, even though the writ of summons of the second and third court date was lawfully served on the defendant, and the defendant was designated as 10:00 on October 26, 2010 and summoned the defendant on the third court date, although the summons of the fourth court date was unable to serve on the defendant without any measures such as re-service, the court below concluded the fourth court date while the defendant was absent, and concluded the fourth court date for sentencing, and then set the fifth court date for sentencing, and sentenced the judgment dismissing the defendant's appeal in the absence of the defendant at that date.

In light of the above legal principles, if the court below summons the defendant on the third trial date as the defendant was absent on the third trial date, but the defendant was unable to serve but the trial proceedings were conducted without the defendant's appearance on the fourth trial date, and the litigation proceedings violate Article 365 of the Criminal Procedure Act and thereby affected the conclusion of the judgment, it constitutes a case where the judgment was affected by the violation of the law. (On the other hand, according to the records, there is no evidence that the order to change the date on the seventh trial date was lawfully served on the defendant. Therefore, the court below needs to confirm whether this is simple filing omission of the report by public notice, and if the court of first instance did not serve the order to change the trial date on the second trial date on the part of the defendant and the defendant was absent on the part of two times or more, and the court below deliberated and judged without the defendant's statement without the defendant's statement, such order will not give the defendant an opportunity to make a statement and the litigation proceedings are unlawful

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)