(영문) 대법원 2020.10.29.선고 2020도9475 판결

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 appellate court date, the appellate court may fix a new date and render a judgment without any 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 appellate court date revert to the defendant two times, he/she shall have been summoned on two occasions and the defendant did not appear in the court on the trial date without justifiable grounds (see, e.g., Supreme Court Decisions 88Do419, Dec. 27, 198; 2008Do2876, Jun.

B. The progress of the judgment of the court below is as follows. The court of the court of the court below was concluded on the date of the first trial of the court below where the defendant appeared, and the second trial date for sentencing was designated as 2:00 p.m. on May 19, 2020. The defendant did not appear without submitting a written reason for non-appearance to the effect that he would not attend the court on May 19, 2020, the second trial date designated. The court below, after designating the third trial date as 3 weeks, accepted the defendant's application for postponement of the sentence date and changed 2 weeks later. The defendant did not appear on the third trial date designated as 3 weeks even after receiving the above order to change the trial date, and the court below rejected the defendant's appeal by amending the third trial date without the defendant's attendance. The defendant asserted that the defendant was subject to 10 p.m. or 19 inspection at 10 p.m. on the second trial date of the court below, and that he was under contact with the prosecutor and the defendant's 3-1).

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 for the same reason. 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 of Cro virus infection-19 and subsequent measures by the third trial date that was in progress five weeks after the date of the third trial, and did not disclose the circumstances that could be suspected of being infected with Cro virus infection-19, such as whether the infection was 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

Based on its stated reasoning, the lower court convicted the Defendant of the instant facts charged. 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 of deception and

3. Conclusion

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