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(영문) 울산지방법원 2018.08.30 2018노478
근로기준법위반
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for four months.

However, the period of one year from the date this judgment becomes final and conclusive.

Reasons

1. The sentence imposed by the court below on the defendant (four months of imprisonment) is too unreasonable.

2. According to Article 63(1) of the Criminal Procedure Act of the Discretionary Judgment of the Supreme Court, when the whereabouts of the defendant are unknown, a public notice may be served. Articles 23 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, and Articles 18 and 19 of the Rules on Special Cases Concerning the Promotion, etc. of Legal Proceedings provide that if it is impossible to confirm the whereabouts of the defendant even though the defendant was requested to investigate the location of the defendant in order to identify his/her whereabouts, issued a arrest warrant, or taken other necessary measures, and if it is impossible to confirm the whereabouts of the defendant within six months after the receipt of the report, service on the defendant shall be served by public notice.

In this context, the six-month period is the minimum period established to protect the defendant's right to trial and the defendant's right to defense. As such, the court of first instance is not allowed to render a trial without the defendant's statement by serving public notice even after six months have not passed since the date of receipt of the report (see, e.g., Supreme Court Decisions 2012Do300, Apr. 26, 2012; 2015Do9572, Dec. 10, 2015). According to the records, the defendant was not present at the first public trial of the court below; 2. The defendant was not present at the public trial of the court; 3. The defendant was not present at the public trial of the court of first instance; 4. The court of first instance entrusted the detection of the location of the defendant to the head of Ulsan District Police Station on December 7, 2017; 3. The defendant was not present at the public trial of the court of first instance on December 21, 2018.

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