(영문) 서울중앙지방법원 2016.09.23 2016노2674

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(영문) 서울중앙지방법원 2016.09.23 2016노2674

폭력행위등처벌에관한법률위반(집단ㆍ흉기등상해)

Text

We reverse the judgment of the first instance court.

A defendant shall be punished by imprisonment for not less than eight months.

Reasons

1. Summary of grounds for appeal;

A. The first instance court committed an illegal act which sentenced the judgment after proceeding with the trial proceedings on the part of the defendant on the part of the incidental public notice given to the defendant.

(b)the first deliberation penalty (eight months of imprisonment) is too unreasonable;

2. Determination

A. According to Article 63(1) of the Criminal Procedure Act, a notice service on the accused may be made only when the dwelling, office, and present location of the accused is unknown. In the event that the actual dwelling, place of work, or the home phone number or cell phone number of the accused appears on the record, an attempt should be made to confirm the place to be served by the actual dwelling, etc. or contact with the phone number, and it is unlawful to serve the accused by the method of public notice and make a judgment without the accused’s statement (see Supreme Court Decision 2009Do12430, Jan. 28, 2010, etc.). (b) According to the records of this case, it is unlawful for the Defendant to serve the Defendant by the method of public notice and make a judgment without the Defendant’s statement. The first instance court did not immediately have attempted to serve the Defendant to the above workplace address or to contact the Defendant with the above phone number, and without having been present at the court’s oral proceedings.

(c)

In light of the aforementioned legal principles, the above notice service is unlawful, and the judgment of the first instance, which was rendered by the defendant without an appearance according to such unlawful notice service decision, constitutes a case where the litigation procedure affects the judgment in violation of the statutes, and thus, the judgment of the first instance cannot be maintained as it is

3. If so, the Defendant’s appeal is justifiable. Thus, without examining the judgment on the unfair argument of sentencing, it is in accordance with Article 364(6) of the Criminal Procedure Act.

참조판례

-대법원 2010. 1. 28. 선고 2009도12430 판결

유사 판례

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