A. Requirements for judgment without the defendant's statement pursuant to Article 365 of the Criminal Procedure Act

(b) The case holding that since a writ of summons of the trial date served by mail was impossible due to a change in the residence of the defendant, and it was impossible for the prosecutor to serve as a director due to unknown residence before the change in the residence was corrected and the result of the request for detection of location was also impossible, the measure of the appellate court decided without the defendant's statement was violated Articles 63 (1) and 365 of the Criminal Procedure Act;

A. In order to render a judgment without a statement of the defendant pursuant to Article 365 of the Criminal Procedure Act, it is necessary that the defendant does not appear in the court without justifiable reasons after receiving a summons of legitimate court date.

B. In a case where, at the time of the appellate trial’s continuation, a writ of summons of the trial date sent by mail to a changed residence after the change of residence was made, the prosecutor revised the dwelling of the defendant before the change was made, and served by mail to the revised dwelling, but the writ of summons was also impossible to be served due to the director’s unknown, and the result of the prosecutor’s investigation direction on the dwelling before the change was reported, and the appellate court’s request for detection of the whereabouts was also impossible, the case held that the appellate court’s measures against the appellate court, which rendered the judgment without the defendant’s statement, violated Articles 63(1) and 365 of the Criminal Procedure Act, on the grounds that the defendant voluntarily reported the changed dwelling after the pronouncement of the first instance judgment to the appellate court, or that the notification of the receipt of the trial report was sent to the changed dwelling due to the changed dwelling on the spot or night due to the fact that the defendant’s residence was sent to the changed dwelling on the spot or by the changed dwelling.

(b)Article 365 of the Criminal Procedure Act; (b) Articles 63(1) and 65 of the Criminal Procedure Act

A.B. Supreme Court Decision 88Do419 delivered on December 27, 198 (Gong1989,254). Supreme Court Order 90Mo70 Delivered on January 25, 1991 (Gong1991,105) (Gong1992,950) Decided January 21, 1992 (Gong1992,950) 93Do3430 delivered on January 25, 1994 (Gong194,860)

Defendant

Attorney Lee J-young, Counsel for defendant

Seoul District Court Decision 94No579 delivered on March 28, 1995

The judgment of the court below is reversed, and the case is remanded to the Seoul District Court Panel Division.

As to the Grounds of Appeal

1. According to Articles 370 and 276 of the Criminal Procedure Act, the appellate court may not revise the court without the attendance of the defendant. However, according to Article 365 of the same Act, if the defendant does not appear in the court on the court date and the defendant does not appear in the court on the new court date without justifiable grounds, the court may render a judgment without the defendant's statement if the defendant does not appear in the court on the new court date without justifiable grounds. However, in order to make a judgment without the defendant's statement, the defendant needs not appear in the court

2. According to the records, the defendant was living in Jongno-gu Seoul Metropolitan Government Department at the time of the first instance judgment on January 21, 1994, and he later moved his residence to Jongno-gu Office Subdivision omitted (hereinafter referred to as "the changed residence omitted") at the time the case was continued by the prosecutor and the defendant's appeal. On May 24, 1994, the court below sent a writ of summons to the defendant for the first trial date to the changed residence by mail, and the mailbor failed to deliver the second trial date to the defendant's residence without permission, and the second trial date was sent to the defendant's second trial date without permission, but the third trial date was sent to the defendant's residence without permission, and it was impossible to send the defendant's second trial date again to the defendant's residence without permission, and the court below found the defendant's report on the change to the first trial date without permission and without permission for change to the second trial date of Jongno-gu 1, 1994.

3. According to Article 63(1) of the Criminal Procedure Act, service by public notice to the defendant in the criminal procedure can be made only when the dwelling, office, or present address of the defendant is unknown. As such, in light of the fact that the defendant's moving to the "Seoul Jongno-gu Office Office Round omitted" in the "Seoul Jongno-gu Office Round omitted" where he was living in the court of first instance, he voluntarily reported the changed dwelling to the court below, or that the notification of the receipt of the trial record in the court of first instance was sent to the above changed dwelling and properly delivered the changed dwelling, it is difficult to conclude that the defendant was living in the above changed dwelling at the time of the trial of this case. Thus, it is difficult for the court below to conclude that the above changed dwelling summons was sent by mail but it was impossible to deliver the new dwelling date due to the absence of the door-to-door or the absence of the recipient, and thus, the prosecutor's location investigation direction or the entrustment of detection of the court below was about the previous dwelling of the defendant.

In light of the above circumstances, the court below's decision to serve by public notice can be seen as having violated Articles 63 (1) and 365 of the Criminal Procedure Act, on the ground that the defendant's residence cannot be known solely because the service of a writ of summons was impossible due to the absence of the documents or the absence of the recipient and the result of the defendant's request for investigation into the residence or the detection of the whereabouts of the court below's address was impossible, and the service by public notice was made without the defendant's statement, and the service was made without the defendant's statement was in violation of the provisions of Articles 63 (1) and 365 of the Criminal Procedure Act, since the procedure was in violation of the law and affected the conclusion of the judgment.

4. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition with the assent of all Justices who reviewed the appeal.

Justices Kim Jong-sik (Presiding Justice)