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

Judgment ex officio is made.

1. With respect to a case that does not fall under death penalty or imprisonment, with or without prison labor, with or without labor, for an indefinite term or for more than ten years, special cases concerning the trial proceedings in the first instance shall be allowed pursuant to Article 23 of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings (hereinafter “Special Provisions”), and the whereabouts of the defendant cannot be confirmed even after six months have passed since a report on the impossibility of serving on the defendant was received, a trial may be

However, in case where a defendant who was convicted pursuant to the special provisions of this case, was unable to attend the trial due to a cause for which the judgment becomes final and conclusive, he may request a retrial to the court of first instance within 14 days from the date on which he became aware of the fact that the judgment was rendered pursuant to Article 23-2 (1) of the above Act (hereinafter “the provisions of this case”), and if he could not request a retrial for the said period due to a cause not attributable to him, he may request a retrial to the court of first instance within 14 days from the date on which such cause ceases

According to the special provision of this case and the language, legislative purport, etc. of the provision of this case, even in a case where the first instance court appealed only to the prosecutor's appeal against the judgment in which the first instance court was absent, and the appellate court dismissed the prosecutor's appeal, and thereby the first instance court's appeal becomes final and conclusive, the defendant, who was unable to attend the first instance court and the appellate court's trial without any reason, may request a retrial of the conviction to the first instance court within the period prescribed by the provision of this case's retrial pursuant to the provision of this case'

In the above case, if the defendant filed an appeal by the recovery of the right of appeal without requesting a retrial, there is a ground for request for retrial under Article 383 subparagraph 3 of the Criminal Procedure Act.