Applicant

Defendant

Attorney Song Jin-hun

Busan District Court Order 2013Na2046 dated August 16, 2013

The immediate appeal of this case is dismissed.

1. Summary of the appellant's assertion;

The Defendant’s domicile on the resident registration card was “( Address omitted) of Busan Jinjin-gu, Busan (hereinafter “instant domicile”). However, the Defendant, from 208 to 208, did not appear separately with his wife, and was engaged in the instant fraud in the instant case. The Defendant did not appear in Indonesia at the request of her natives during the instant trial period, and entered the trial in line with the date of trial and was present at the trial. The Defendant was decided to serve as the site manager at Indonesia’s electrical construction site after being tried on July 201, but the Defendant did not appear in the court below’s address at the time of postponement of trial, and the Defendant did not appear in the court below’s address at the time of the instant appeal, and the Defendant did not appear in the court below’s address on July 16, 2011, and notified the Defendant of the fact that he did not appear in the court below’s address at the time of the instant appeal. The Defendant did not appear in accordance with the summons of this case.

2. Determination

A. According to the records, the following facts are recognized.

(1) On December 16, 2010, the Defendant issued a warrant of arrest on a suspected charge of fraud, and was arrested on January 4, 201 by that warrant, and was released on the same day. On February 10, 2011, the Defendant was prosecuted for the instant case, such as fraud, Busan District Court 201Kadan649, and the Defendant’s residence was written in the indictment as “Yansan-gu Busan District Court 201 Jin-gu 201 (defluence of the instant case’s address)” (defluence of the instant indictment). The duplicate of the instant indictment and the Defendant’s writ of summons, etc. received a written opinion from the Defendant’s wife at the instant domicile on February 10, 201, and the Defendant submitted the written opinion to the court of first instance on February 16, 2011, which directly received the order of change of the trial date from the court of first instance on March 16, 2011.

(2) On April 18, 2011, the Defendant appeared at the first trial date, which was held on April 18, 201, and stated that the Defendant’s residence was the instant domicile as indicated in the indictment. The Defendant appointed a private defense counsel on April 19, 201, and thereafter, the Defendant appeared together with a defense counsel on the second trial date opened on April 29, 201, the third trial date opened on May 20, 201, the third trial date opened on May 20, 201, the fourth trial date opened on June 10, 201, and the fifth trial date opened on July 12, 201.

(3) On the other hand, the defendant has repeatedly left Korea several times from the date of prosecution to the date of the fifth trial. The detailed details are as follows.

Malaysia on March 27, 201, March 27, 2011, Indonesia on February 28, 2011, the date of entry into the country of departure from the Republic of Korea, included in the main sentence of this, was July 10, 201, Indonesia on March 28, 201, May 28, 201, Indonesia on May 10, 201, June 12, 2011.

(4) The Defendant appeared on the third trial date and led to the confession of all the facts constituting the offense stated in the indictment. The court of the first instance notified the Defendant of the fifth trial that the court decided to consolidate and examine the additional cases (the Busan District Court Decision 2011No. 4072) against the Defendant in the court on the fifth trial date, and the Defendant led to the confession of all the facts constituting the offense stated in the indictment of the said additional case in the court, and stated that his dwelling was the domicile of the instant case as stated in

(5) On July 12, 201, the court of first instance concluded the pleadings in the presence of both the Defendant and his defense counsel at the fifth trial day opened on July 12, 201, and set the sentencing date as August 19, 201. However, the Defendant left the Republic of Indonesia on July 16, 201, four days after the closing of argument. The Defendant did not notify the court of the departure.

(6) On August 18, 201, the day before the sentencing date, the Defendant’s defense counsel filed an application with the court of first instance for the extension of the sentencing date for additional agreements with the victims, and the Defendant was absent on August 19, 2011. Accordingly, the court of first instance delayed the sentencing date for the Defendant on September 6, 201, and sent the Defendant’s writ to the address of this case. The Defendant’s defense counsel received the Defendant’s writ at the address of this case on August 23, 2011. However, on September 5, 2011, the Defendant’s defense counsel again filed an application with the court of first instance for the extension of the sentencing date for additional agreements with the victims, and the Defendant was absent on August 19, 2011, and the Defendant sent the Defendant’s writ to the court of first instance on September 6, 2011, and the Defendant was absent on the date of second instance and second instance on September 1, 2011.

(7) However, on September 23, 2011, the Defendant had not been present on the date of pronouncement open on September 23, 201. On September 29, 2011, the court of first instance sent a written decision on resumption of pleadings to the domicile of the instant case, and the written decision on resumption of pleadings received by the applicant at the domicile of the instant case on October 4, 201.

(8) On October 14, 2011, on the 9th trial date opened on October 14, 201, only a defense counsel of the defendant was present, and the defendant was absent. Accordingly, the court of first instance postponed the new trial date on November 4, 201, and thereafter, the defendant and his defense counsel were absent on the 10th trial date ( November 4, 201) and the 11th trial date ( November 25, 201) thereafter.

(9) The court of first instance issued a detention warrant on September 9, 201 and November 28, 201 to secure the defendant’s personal illness on two occasions, but the above detention warrant was not executed due to the defendant’s unknown whereabouts. Meanwhile, on October 17, 2011, the prosecutor returned the detention warrant issued on September 9, 201 to the court of first instance and confirmed the fact that “the defendant was not actually residing in the domicile of this case, and at the present present address of this case, the applicant was able to return the detention warrant.” The court of first instance confirmed the fact that the person other than the applicant was able to live together. The applicant visited several times to check the location of the defendant. However, the applicant visited his house for a long time due to his work at other local areas, etc., and thus his whereabouts is unknown.”

(10) On November 8, 201, the court of first instance ordered the head of Busan Police Station having jurisdiction over the instant domicile to find out the Defendant’s whereabouts, but on January 13, 2012, the court received a report on the result of the following: (a) “I do not have any seal on the instant domicile; and (b) I do not have any personal seal on the part of the head of Busan Police Station having jurisdiction over the instant domicile; and (c) on January 13, 2012, I would have known the Defendant’s whereabouts on the ground that I would not have any personal seal

(11) The Defendant’s defense counsel resigned on June 22, 2012, and the Defendant was absent on the 12th trial date opened on June 26, 2012. The court of the first instance ordered the prosecutor to submit an entry and departure inquiry of the Defendant on the 12th trial date, and the prosecutor submitted an entry and departure inquiry to the Defendant on June 27, 201, and only the result was revealed that the Defendant left Indonesia on July 16, 2011. After the pleading with the Defendant on September 29, 201, the Defendant’s writ of summons on the date of trial opened until the departure was revealed was sent to the address of the instant case located in the Defendant’s resident registration address, and both the Defendant’s summons received the applicant from the domicile of the instant case.

(12) On June 27, 2012, the court of first instance decided to serve the Defendant by public notice; thereafter, the Defendant’s writ of summons served the Defendant by public notice; and the Defendant was absent on the 13th trial date opened on July 24, 2012 and the 14th trial date opened on August 14, 2012.

(13) The court of first instance notified the defendant to revise the procedure without his/her attendance in accordance with Article 23 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, and completed the examination of evidence by reason of the judge’s replacement, and concluded the proceedings on August 24, 2012. The writ of summons on the fifteenth trial date was served on the defendant by public notice on August 21, 2012, but the defendant was also absent on the date of the pronouncement opened on August 24, 2012. The court of first instance declared that the defendant was punished by imprisonment with prison labor for four years while the defendant was absent on the date of the pronouncement opened on August 24, 2012, and that the defendant did not file an appeal within the period of appeal, which became final and conclusive on December 1, 2012.

(14) As above, the Defendant left Indonesia on July 16, 2011, but went back to Korea on August 13, 2013, and was immediately detained on August 14, 2013 through the Incheon International Airport.

B. According to Article 345 of the Criminal Procedure Act, if a person entitled to appeal or his/her representative fails to file an appeal within the period for filing an appeal due to a cause not attributable to him/her or his/her representative, he/she may request recovery of his/her right to appeal. However, the defendant left Indonesia to believe that he/she would contact the defendant when he/she is to attend the trial, and he/she was unable to contact with the defendant's defense counsel, and he/she was unable to contact with the defendant's defense counsel. In addition, the defendant's wife who was served with the writ of summons at his/her domicile was unable to contact with the defendant's defense counsel. Thus, the defendant's defendant's defendant case asserted that he/she was unable to file an appeal within the period for filing an appeal due to a cause not attributable to the defendant. However, the defendant's criminal defendant case pending trial at the court shall submit his/her new stocks to the court or may know the progress of the lawsuit. If he/she did not appear on the date for filing the lawsuit, he/she could not be exempt from liability due to the defendant's appeal.

Meanwhile, according to Article 63(1) of the Criminal Procedure Act, when the dwelling, office, or present location of the defendant is unknown, service by public notice may be made. Article 23 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, Article 18(2) and (3), and Article 19 of the Rules on Special Cases Concerning the Promotion, etc. of Legal Proceedings, etc. is not applicable to death penalty, imprisonment with or without prison labor for more than ten years, but it is impossible to confirm the defendant's whereabouts even though the first instance court took necessary measures to confirm the defendant's whereabouts, if it is impossible to confirm the defendant's whereabouts after six months have passed since a report on the defendant's impossibility of service was received, service by public notice shall be made by public notice, and if the defendant fails to appear at the court without the defendant's statement even after being summoned by public notice two or more times, service by public notice shall be made without the defendant's statement. According to the above facts of recognition, even if the court of first instance failed to confirm the defendant's whereabouts of service by public notice as above, it cannot be found unlawful.

3. Conclusion

Therefore, the claim for recovery of the right of appeal of this case is dismissed as it is without merit, and the order of the court below is just in conclusion, and the immediate appeal of this case is dismissed in accordance with Article 414 (1) of the Criminal Procedure Act, and it is so decided as per Disposition.

Judges Noh Jeong-sik (Presiding Judge) Kim Jong-ju