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The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for one year.
Reasons
1. The sentence of the lower court (one year of imprisonment) shall be too unreasonable as to the gist of the grounds for appeal.
2. Ex officio determination
A. The record reveals the following facts.
1) Under Article 23 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, the lower court served a copy of the indictment, a writ of summons, etc. by the method of serving public notice, and sentenced one year to imprisonment with prison labor, while the Defendant was absent.
2) After that, upon the arrest of the Defendant on May 28, 2018 due to the execution of a sentence established by the lower judgment that became formally final and conclusive, the Defendant filed an appeal with this court, and claimed that he was unaware of the fact that he did not receive a delivery of a copy of the indictment, etc., upon filing a petition for recovery of his right of appeal.
3) On June 1, 2018, the lower court rendered a decision to recover the Defendant’s right to appeal by recognizing that the Defendant was unable to file an appeal within the appeal period due to a cause not attributable to the Defendant.
B. Comprehensively taking account of the above circumstances, the Defendant was unable to attend the trial due to a cause not attributable to him, and thus, there is a ground for requesting a retrial under Article 23-2 of the Act on Special Cases Concerning Promotion of Legal Proceedings,
As such, this constitutes the grounds for appeal under Article 361-5 subparag. 13 of the Criminal Procedure Act, since the court below served a copy, etc. of the indictment again at the trial court and served all the procedure of the trial including the investigation of evidence, it became impossible to maintain the judgment below (see, e.g., Supreme Court Decisions 2015Do8243, Nov. 26, 2015; 2015Do11878, Nov. 26, 2015). 3.
【Judgment to be used again】 Criminal facts and summary of evidence recognized by the court, as well as relevant facts.