Pursuant to Article 365 of the Criminal Procedure Act, the requirements for the judgment in the appellate court without the statement of the defendant

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

Supreme Court Decision 2009Do12430 Decided January 28, 2010 (Gong2010Sang, 484) Supreme Court Decision 2010Do12026 Decided December 9, 2010, Supreme Court Decision 2010Do16538 Decided February 24, 201

Defendant

Defendant

Seoul Southern District Court Decision 2009No165 Decided September 18, 2009

The part of the judgment of the court below against the defendant is reversed, and that part of the case is remanded to the Seoul Southern District Court Panel Division.

The grounds of appeal are examined.

According to Articles 370 and 276 of the Criminal Procedure Act, an appellate court may not, in principle, revise the court without a defendant's appearance at the court of appeal: Provided, That where a defendant fails to appear in the court on the court date pursuant to Article 365 of the same Act, the court may render a ruling without a defendant's statement in cases where the defendant fails to appear in the court on the new court date without a justifiable reason. In order for the court to render a judgment without a defendant's statement without a justifiable reason, the defendant need not appear in the court without a justifiable reason even after being summoned due court date (see, e.g., Supreme Court Decisions 2009Do12430, Jan. 28, 2010; 2010Do12026, Dec. 9, 2010).

According to the records, the court below ordered the defendant to serve a summons of the court date on June 4, 2009 and the summons of the court date on June 4, 2009, when both the defendant was unable to serve due to the addressee, director unknown, etc., the court below ordered the defendant to serve a summons of the court date by public notice. The court below served the defendant by public notice and proceeded the fourth to the sixth court date without the defendant's appearance. However, the court below did not serve the summons of the court date on August 14:30, 2009 and did not serve the defendant by public notice or by any other means in relation to the seventh court date designated as of August 14:30, 209 and did not appear before the court and concluded the pleading and set the eight court date for sentencing without the defendant's appearance, and the court below can find the fact that the defendant did not appear at the designated court date without taking measures such as the resumption of pleading, etc.

Examining the above facts in light of the legal principles as seen earlier, the court below’s order to revise the trial date without lawful summons against the defendant and close the pleadings and set a sentence date in the absence of the defendant, constitutes a case where the judgment was affected by violating the statutes relating to litigation procedures, such as Article 365 of the Criminal Procedure Act. The ground of appeal containing the purport of pointing this out is with merit.

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of 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.

Justices Shin Young-chul (Presiding Justice)