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The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not more than ten months.
Reasons
1. The sentence imposed by the court below (ten months of imprisonment) is too unreasonable.
2. Ex officio determination
A. According to Article 63(1) of the Criminal Procedure Act, when the dwelling, office, or present address of a defendant is unknown, service by public notice may be made. Article 23 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, and Articles 18 and 19 of the Rules on Special Cases Concerning the Promotion, etc. of Legal Proceedings do not correspond to capital punishment, imprisonment, or imprisonment with or without prison labor for life or for more than ten years in the first instance trial, if it is impossible to confirm the whereabouts of the defendant even after the investigation of location was requested, issuance of a detention warrant, or other necessary measures was taken in order to verify the whereabouts of the defendant, service by public notice
In this context, the six-month period is the minimum period established for the protection of the defendant's right to trial and right to attack and defense. As such, it is not allowed for the first instance court to judge without the defendant's statement by serving public notice even after six months have not passed since the receipt of the report on the failure to serve on the defendant (see, e.g., Supreme Court Decisions 2003Do4983, Nov. 14, 2003; 2016Do3467, Jul. 14, 2016). On the other hand, the report on impossibility of detection that the chief of the police station having jurisdiction over the defendant's domicile, etc. sent by the court's request for the detection of location by the court confirms the defendant's location by means of directly visiting the defendant's address and searching for residents or neighboring residents, so it is possible to confirm the defendant's whereabouts more accurately than the report on impossibility of serving.
Therefore, the receipt of a report on detection of location can be seen as the "receiving of a report on impossibility of service" under Article 23 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings