The judgment below

The part against the defendant shall be reversed.

A defendant shall be punished by imprisonment for six months.

1. The sentence of the lower court against the accused (six months of imprisonment) is too unreasonable.

2. Ex officio determination

A. According to the records of this case where grounds for retrial exist, the court below rendered a judgment on July 24, 2020 by serving a writ of summons, etc. by public notice pursuant to Article 23 of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings, and proceeding the trial in the absence of the defendant. ② The defendant filed a claim for recovery of right to appeal on August 27, 2020 after the judgment of the court below was rendered, and ③ the court below determined that the defendant failed to file an appeal within the appeal period due to a cause not attributable to the defendant on August 28, 2020, respectively.

In light of the above facts, it is difficult to evaluate that the defendant is responsible for failure to attend the trial of the court below, unless there are special circumstances, and the court below is judged to have a ground for request for retrial under Article 23-2 (1) of the Act on Special Cases Concerning

Accordingly, the appellate court shall proceed with the procedure again and render a judgment according to the result of a new trial, so the judgment of the court below cannot be maintained any more.

B. Article 35(1) of the Criminal Act stipulating that “A person who commits a crime equivalent to or greater than imprisonment without prison labor, after having been sentenced to imprisonment without prison labor or heavier punishment, or having been exempted from such punishment, shall be punished as a repeated crime.” The execution of a sentence is premised on the conclusion of the judgment.

(Article 459 of the Criminal Procedure Act. However, according to the records of the instant case, the Defendant was sentenced to ten months of imprisonment with prison labor for the crime of escape from a criminal by the Jeju District Court on January 15, 2016 and released from Jeju Prison as revocation of detention on May 22, 2016, and thereafter, the Defendant’s judgment became final and conclusive on September 28, 2016 and completed the execution of the sentence.

Therefore, the instant crime was committed within three years from the completion date of the sentence of the crime of escape of the offender, which was sentenced to imprisonment without prison labor or heavier punishment.