(영문) 대법원 2019.5.10. 선고 2018도18934 판결

1. The appellate court may not, in principle, amend the law without the attendance of the defendant (the main text of Article 370 and Article 276 of the Criminal Procedure Act): Provided, That if the defendant does not appear in the court on the appellate court date, the court may render a new date and render a judgment without a justifiable reason if the defendant does not appear in the court on the new date (Article 365 of the Criminal Procedure Act). However, the above provision is a kind of disciplinary provision which considers that the defendant neglected his/her right to pleading on the merits is waived due to his/her neglect, and the appellate court shall also summon the defendant on the date of trial (Articles 370 and 267(2) of the Criminal Procedure Act). Thus, if the defendant intends to have been absent on two occasions on the appellate court date, he/she shall have been summoned on two occasions and did not appear in the court on the date of trial without justifiable grounds (see, e.g., Supreme Court Decisions 88Do419, Dec. 27, 2008; 2008Do26169.

Meanwhile, when the defendant is summoned, a writ of summons prepared in accordance with the legal method shall be served (Articles 73, 74, and 76(1) of the Criminal Procedure Act). However, when the defendant presents a document that he is present on the fixed date or orders the present defendant to appear at the fixed date, a prison officer's notice of summons was given to the detained defendant through the prison officer, and when the court notice of summons was given to the defendant within the jurisdiction of the court, the same effect as the service of the summons is recognized.

Article 76(2) through (5) and Article 268 of the Criminal Procedure Act (see, e.g., Supreme Court Decisions 201Do16591, Oct. 27, 201; 201Do1377, Nov. 29, 201; 201Do1377, Nov. 29, 201). In full view of the language and purport of the relevant provision as mentioned above, and the public prosecutor who does not have an obligation to attend the trial differently from the defendant - a person involved in the litigation, such as a defense counsel, etc., the summons to the defendant shall be served with a writ of summons prescribed by the Criminal Procedure Act or by other means having the same effect as the summons, and the notification or notification, etc. of the de facto date by other means shall not be deemed a summons to the defendant (see, e., Supreme Court Decisions

2. The record reveals the following facts.

A. On July 9, 2018, the Defendant appeared on the first trial date of the lower court on the said date, and the lower court, upon closing pleadings on the said date, designated and notified the date on August 23, 2018, which was the second trial date. B. The Defendant submitted an application for extension of the trial date to the lower court on August 20, 2018, and the lower court, on August 222, 2018, issued an order to change the trial date and sent it to the Defendant as “the date of pronouncement on the second trial date shall be changed to 10:00 on August 10, 2018,” but did not appear on the closed date. Meanwhile, the records of the instant case did not appear on August 22, 2018 with the Defendant’s cell phone number, but did not appear on the changed trial date (the changed trial date (the changed trial date).

D. Accordingly, the lower court postponed the sentencing date, and designated the third trial date as November 8, 2018 and sent a writ of summons to the Defendant, and received the Defendant’s live-in M on October 31, 2018.

E. On November 8, 2018, the Defendant did not appear on the third trial date, and the lower court, without the Defendant’s appearance, rendered a judgment dismissing all appeals by the Defendant and the Prosecutor.

3. Examining these facts in light of the legal principles as seen earlier, even if the lower court notified the Defendant of the second trial date changed as the mobile phone text message, it cannot be deemed a lawful method of summons as prescribed by the Criminal Procedure Act. Ultimately, with respect to the Defendant’s absence on the second trial date, it cannot be deemed that the Defendant did not appear in the court without justifiable grounds after receiving a summons notice of legitimate trial date, and it can be deemed that the Defendant did not appear in the court without justifiable grounds only when the Defendant was absent on the third trial date. Therefore, even if the Defendant was lawfully served a writ of summons on the third trial date, it does not constitute a case where the Defendant did not appear in the court without justifiable reasons on two consecutive occasions, and thus, the third trial date cannot be amended pursuant to Article 365(2)

Nevertheless, the lower court, without the attendance of the Defendant, rendered a judgment by amending the third trial date without the attendance of the Defendant, was erroneous and adversely affected the conclusion of the judgment in violation of the statutes regarding litigation procedures, including Article 365 of the Criminal Procedure Act. Therefore, the allegation in the grounds of

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.