[1] Requirements for a judgment without a defendant's statement pursuant to Article 365 of the Criminal Procedure Act

[2] The case holding that the appellate court's order of service by public notice immediately and the order of the appellate court without a defendant's statement was unlawful when the writ of summons of the trial date was not served due to the absence of a closed door door, the addressee's unknown whereabouts, etc. without any measures such as identifying the place of service by linking the defendant

[1] Articles 63(1), 276, 365, and 370 of the Criminal Procedure Act / [2] Articles 63(1) and 365 of the Criminal Procedure Act

[1] [2] Supreme Court Decision 2002Do2520 Decided September 24, 2002 (Gong2002Ha, 2630), Supreme Court Decision 2006Do3892 Decided July 12, 2007 (Gong2007Ha, 1315), Supreme Court Decision 2008Do5508 Decided September 25, 2008

Defendant

Defendant

Daegu District Court Decision 2007No2455 Decided December 2, 2008

The judgment below is reversed, and the case is remanded to the Daegu District Court Panel Division.

We examine the grounds of appeal.

According to Articles 370 and 276 of the Criminal Procedure Act, the appellate court may not open the court without the attendance of the defendant. However, according to Article 365 of the same Act, if the defendant does not appear in the court on the appellate court date and the defendant does not appear in the court on the new trial date without justifiable grounds, the court may decide without the defendant's statement if the defendant does not appear in the court on the new trial date without justifiable grounds. However, in order to render a judgment without the defendant's statement, the defendant needs not appear in the court without justifiable grounds after receiving a summons of legitimate court date (see Supreme Court Decision 2002Do2520, Sept. 24, 2002)

According to the records, when the writ of summons of the first trial date, which was delivered to the defendant's residence as "Sacheon-gu So-dong (Sacheon-dong (Sacheon-dong 1 omitted)" as the defendant's residence, was impossible to be served due to the lack of closure, the court below ordered the defendant's second trial date to be served on the defendant's domicile on the ground that the prosecutor sent the writ of summons of the second trial date to "Saeongsung-dong (Saong-dong 2 omitted) ○○○○○, which is the defendant's domicile, but was impossible to be served on the ground of the addressee's unknown whereabouts," and the court below ordered the head of Daegu Suwon-dong Police Station to find the defendant's whereabouts and requested the defendant's presence at the above address "Seoul-dong 3 omitted)" by the defendant's cell phone number (Saongdong-dong 4 omitted) and the defendant did not appear on the trial date on the ground that the documents were served on the defendant's address, etc.

However, according to Article 63(1) of the Criminal Procedure Act, service by public notice to the accused can be conducted only when the dwelling, office, or present address of the accused is unknown in the criminal proceedings. According to the records, on August 12, 2008, the defendant requested the court below to contact with the above address by stating the "Seoul Guro-gu 1 Dong-dong (3 omitted)" and the "Seoul 1 Dong-dong phone number (2 omitted)" and the contact number (1 omitted) with the address of the accused at the court below on August 12, 2008. In addition, even in the letter of request for detection of the location of the police station of Daegu Masung-gu, the head of the police station mentioned above, stating the above mobile phone number of the accused and indicating that the defendant voluntarily appeared

Therefore, the court below should have tried to confirm the place where the defendant was sent with the above telephone numbers prior to the order of service by public notice. However, the court below, without taking such measures, concluded that the defendant's dwelling, office and present address cannot be known, and immediately rendered service by public notice and rendered a judgment without the defendant's statement, shall be deemed to violate Articles 63 (1) and 365 of the Criminal Procedure Act. This constitutes a violation of the law and a violation of the law and affected the conclusion of the judgment. Thus, the ground of appeal pointing this out is with merit.

Therefore, without examining the remaining grounds of appeal, the lower judgment is reversed, and 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 Park Si-hwan (Presiding Justice)