Where the trial proceedings of the first instance have progress while the defendant was not present at the trial date because he/she summoned the defendant by means of service without serving the defendant or his/her defense counsel a duplicate of indictment, measures to be taken by the appellate court shall be taken.

Article 266 of the Criminal Procedure Act provides that "the court shall serve without delay a copy of the indictment on the defendant or his/her defense counsel at the time of institution of a public prosecution: Provided, That it shall serve the copy of the indictment at least five days prior to the date of the first public trial: Provided, That if the first public trial proceedings have been conducted without serving the defendant or his/her defense counsel with the copy of the indictment, it constitutes a violation of the Acts and subordinate statutes governing the litigation proceedings. In such a case, if the defendant was given an opportunity to sufficiently state the facts charged without objection in the court of first public trial, it shall not be deemed that there is an error of law affecting the conclusion of the judgment. However, if the first public trial proceedings have been conducted while the defendant was summoned by service by public notice and the defendant did not appear at the court of first public trial, it shall serve the defendant or his/her defense counsel with a copy of the indictment, and after new litigation proceedings

Article 266 of the Criminal Procedure Act

Supreme Court Decision 91Do3272 Decided March 10, 1992 (Gong1992, 1340) Supreme Court Decision 201Do1474 Decided January 12, 2012

Defendant

Defendant

Attorney Seo-soo

Supreme Court Decision 2013Do3462 Decided May 23, 2013

Suwon District Court Decision 2013No1217 decided July 17, 2013

The judgment of the court below is reversed, and the case is remanded to the District Court Panel Division.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Article 266 of the Criminal Procedure Act provides that "the court shall serve without delay a copy of the indictment on the defendant or his/her defense counsel by not later than five days prior to the date of the first trial: Provided, That if the first instance court proceedings are in progress without serving the copy of the indictment on the defendant or his/her defense counsel, it constitutes a violation of the Acts and subordinate statutes governing the litigation proceedings. In such a case, if the defendant was given a sufficient opportunity to state the facts charged without objection in the court of first instance (see Supreme Court Decision 91Do3272, Mar. 10, 192, etc.). However, if the first instance court summons the defendant by public notice and fails to appear in the court of first instance, the litigation proceedings conducted in such unlawful trial proceedings have no effect, and in such a case, the appellate court shall serve the defendant or his/her defense counsel with a copy of the indictment and conduct procedural acts through legitimate procedures, and then render a new trial proceeding, based on the testimony and evidence examination in the appellate court, etc. (see, e.g., Supreme Court Decision 2014Do1214).

2. The record reveals the following facts.

A. The first instance court determined that the Defendant shall be summoned of the Defendant by means of public notice as well as a writ of summons, etc. of the date of trial shall not be served on the Defendant, and accordingly, served two or more times the writ of summons of the trial date by public notice, and subsequently, tried without the attendance of the Defendant, and sentenced the first instance court that found the Defendant guilty of the facts charged in this case and sentenced the Defendant to one year in imprisonment. However, the first instance court, as seen above, did not serve the Defendant with a copy of the indictment by public notice even until the pronouncement of the judgment.

B. As to the judgment of the court of first instance, the prosecutor appealed on the ground of unfair sentencing and served a writ of summons on the defendant by public notice even before remanding the case, and then tried the trial without the attendance of the defendant and dismissed the prosecutor’s appeal.

C. Accordingly, the Defendant appealed against the lower judgment prior to remand through the procedure for the recovery of the right to appeal. The Supreme Court reversed the lower judgment prior to remand and remanded the case to the lower court on the ground that: (a) the first instance court only summoned the Defendant by means of service without delivering a copy of the indictment to the Defendant; (b) the Defendant did not appear in the court; and (c) the measures that sentenced the judgment and proceed with the trial without the Defendant’s statement; and (d) the measures that the lower court rendered ex officio examined these errors of the first instance court prior to remand, and did not proceed with the procedures; and

3. Examining such process in light of the legal principles as seen earlier, since litigation conducted in the first instance trial is no longer effective, the lower court should have rendered a new judgment based on the result of the trial, such as the statement and examination of evidence, after having conducted the litigation through lawful procedures. Nevertheless, the lower court served a duplicate of indictment on the Defendant, and subsequently proceeded with the trial, limited the scope of the judgment of the lower court to the prosecutor’s grounds for appeal against the judgment of the first instance, and sentenced the judgment based on the result of examination of evidence in the first instance trial. In so doing, the lower court erred by misapprehending the legal principles on the validity of litigation conducted in violation of statutes, thereby adversely affecting

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 Kim So-young (Presiding Justice)