Whether the absence of the defendant shall continue to exist at least twice in the appellate court to revise the court without the defendant's appearance (affirmative)

According to Articles 370 and 276 of the Criminal Procedure Act, the appellate court may not open the court without the attendance of the defendant on the trial date. However, Article 365 of the same Act provides that if the defendant fails to appear on the trial date of appellate court, the date shall be set again, and if the defendant fails to appear on the trial date again without any justifiable reason, the court may render a judgment without the statement of the defendant. Thus, in order to open the court without the attendance of the defendant, the absence

Articles 276, 365, and 370 of the Criminal Procedure Act

Defendant 1 and one other

Defendants

Seoul Eastern District Court Decision 2015No1125 decided January 22, 2016

The judgment below is reversed, and the case is remanded to the Seoul Eastern District Court.

The grounds of appeal are examined.

1. According to Articles 370 and 276 of the Criminal Procedure Act, the appellate court may not revise the trial without the attendance of the defendant on the trial date. However, Article 365 of the same Act provides that where the defendant fails to appear on the trial date of appellate court, the date shall be set again, and where the defendant fails to appear on the trial date of appellate court without justifiable grounds, a judgment may be rendered without the defendant's statement. Thus, in order to revise the trial without the attendance of the defendant, the absence

2. The record reveals the following facts.

(1) The Defendants had been absent from office even after having lawfully served a writ of summons on the first trial date ( November 6, 2015) of the lower court, but appeared on the second trial date designated as 10:30 on December 2, 2015.

(2) As the Defendants were absent at the third trial date ( December 23, 2015), the lower court sentenced the Defendants to the dismissal of all appeals on the fourth trial date ( January 22, 2016), following the closure of pleadings and the closure of pleadings by the Defendants’ defense counsel and the public prosecutor’s defense counsel and the subsequent trial date ( January 22, 2016).

3. Examining the above facts in light of the legal principles as seen earlier, since the Defendants were absent from the date of the first trial, but the Defendants appeared on the second trial date, the court below cannot immediately revise the said facts, and only when the Defendants were absent on the third trial date, and the Defendants were absent on the fourth trial date, the court below may revise the said facts without the attendance of the Defendants. Nevertheless, the court below deemed the Defendants were not absent on more than two occasions, and revised the third trial date without the attendance of the Defendants. Accordingly, the court below erred by violating Article 365 of the Criminal Procedure Act and other Acts and subordinate statutes governing litigation procedures, which affected the conclusion of the judgment. The grounds of appeal assigning this error are with merit.

4. The judgment of the court below is reversed without examining the remaining grounds of appeal, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition.

Justices Kim Shin (Presiding Justice)