[1] The elements for reverting to the defendant the responsibility which had been absent on the trial date pursuant to Article 365 of the Criminal Procedure Act

[2] The case holding that in case where the defendant submitted a written reason for non-appearance to the effect that he could not attend the court scheduled to undergo the examination of Korovina virus infection-19 on the designated trial date and failed to appear, and thereafter set a trial date after which the defendant failed to appear, and the defendant accepted the application for postponement of the sentence date, but the defendant did not appear on the designated trial date even after the above order for alteration was served, the defendant did not appear on the designated trial date, on the ground that the defendant's failure to attend the court on the trial date was merely the old room to delay the sentence, and the court below's decision dismissing the defendant's appeal by revising the trial date without the defendant'

[1] Article 365 of the Criminal Procedure Act / [2] Article 365 of the Criminal Procedure Act

[1] Supreme Court Decision 88Do419 decided Dec. 27, 1988 (Gong1988, 254) Supreme Court Decision 2008Do2876 decided Jun. 26, 2008

Defendant

Defendant

Law Firm Barun Law LLC, Attorneys Park Il-hwan et al.

Seoul Southern District Court Decision 2019No2454 decided June 23, 2020

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal disputing the legal proceedings

A. The appellate court may not, in principle, amend the Criminal Procedure Act without the attendance of the defendant (the main text of Article 370 and Article 276 of the Criminal Procedure Act): Provided, That where the defendant does not appear in the court on the date of appellate trial, the appellate court may fix a new date and render a judgment without a justifiable reason if the defendant does not appear in the court on the new date (Article 365 of the Criminal Procedure Act). In accordance with the above provisions, if the defendant wants to have the responsibility for having been absent twice on the date of appellate trial reverted to the defendant two times, he/she shall have been summoned on two occasions, but he/she did not appear in the court on the date of trial without justifiable grounds (see Supreme Court Decisions 88Do419, Dec. 27, 198; 2008Do2876, Jun. 26, 200

B. The progress of the judgment of the court below is as follows. The court below concluded the trial on the date of the first trial of the court below, which the defendant appeared, and set the second trial date for sentencing as 2:00 on May 19, 2020. The defendant did not appear without submitting a written reason for non-appearance, which was designated as 2:00 on May 19, 2020, the second trial date of the court below, which was designated as 3 weeks, and the court below accepted the application for postponement of the pronouncement date of the defendant and changed to 2 weeks later. The defendant did not appear on the third trial date designated as 3 weeks after receiving the application for postponement of the pronouncement date of the defendant. The court below rejected the defendant's appeal by amending the trial date without the attendance of the defendant.

C. The Defendant, on the second trial date of the lower court, was subject to the examination of Korovina virus infection-19 at 10:00 a.m., and was instructed by the hospital to block and isolate contact with all people by 7:0 a.m. on the same day. As such, the Defendant’s absence on the second trial date was due to Corovina virus infection-19 examination, the hospital instructions thereby, and the court’s recommendation. However, the Defendant asserted that the lower court’s failure to appear on the third trial date was erroneous in violation of Article 365 of the Criminal Procedure Act.

D. According to the records, the following circumstances are revealed.

1) The Defendant was sentenced to two years in the first instance trial, but did not have been sentenced to imprisonment, and argued misunderstanding of facts and unreasonable sentencing as the grounds for appeal, while appealed without being detained by law, and the assertion of mistake of facts was purported as the same as the argument in the first instance trial. Upon the designation of the first trial date, the Defendant applied for extension of the date to reach an agreement, but did not accept it, and even before the second trial date for sentencing was not accepted, the Defendant applied for extension of the date on the same ground. Meanwhile, even before the second trial date for sentencing was not accepted

2) As seen earlier, the Defendant submitted a report on the cause of absence on May 19, 2020, but failed to submit data on the results of the examination and follow-up measures by the third trial date that was in progress five weeks after the third trial date, and did not disclose the circumstance suspected of being suspected of being infected with cona virus infection-19, such as whether the results of the examination are closely connected with the confirmed person.

3) The Defendant filed an appeal against the judgment dismissing the appeal by the lower court, and submitted the appellate brief along with data on the results of the examination, etc. on May 19, 2020, including the results of Korovina virus infection-19, and the said prosecutor appears to have borne expenses by the Defendant himself/herself, and found that the result of the examination was proved to have been voice.

E. Examining these facts in light of the legal principles as seen earlier, in the instant case, the Defendant’s failure to appear on the second trial date of the lower court merely appears to have been merely an old room for delaying a sentence, and it is difficult to recognize justifiable grounds. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the law or violating the law, etc., which affected the conclusion of the judgment.

2. As to the grounds of appeal on the facts charged

For the reasons indicated in its holding, the lower court convicted the Defendant of the instant charges. Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on the criminal intent

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Tae-tae (Presiding Justice)