(영문) 대법원 2020.1.16. 선고 2019도16116 판결

1. Article 23 of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings provides that "in cases where it is impossible to confirm the whereabouts of the accused until six months have passed since a report on the failure to serve on the accused was received at the trial of the first instance, the trial may be held without a statement of the accused, as prescribed by the Supreme Court Regulations," and Article 19 (1) of the Rules on Special Cases Concerning Promotion, etc. of Legal Proceedings provides that "in cases where it is impossible to serve on the accused at least two months after receipt of the report on the failure to serve on the accused at the trial of the first instance, this shall not apply to cases falling under death penalty, life imprisonment, or imprisonment with or without prison labor for more than ten years," and Article 18 (2) of the Rules on Special Cases Concerning Promotion, etc. of Legal Proceedings provides that "in cases where the whereabouts of the accused is not confirmed by service by public notice, if the accused fails to appear after being summoned by the trial date referred to in paragraph (1) at least two times, the period above may be tried without a statement of the accused under Article 2300.

In addition, if the first instance court served a copy of the indictment and a writ of summons of the trial date on the ground that the defendant did not appear twice or more by the decision of illegal service by public notice and tried and judged without the attendance of the defendant, it would be unlawful in the litigation procedure, and the court of appeals may render ex officio adjudication on the grounds that affect the judgment, even in cases where the grounds for appeal are not included in the statement of grounds for appeal. In other words, the court of appeals shall take ex officio measures to rectify the illegality of the first instance court. In such a case, the court of appeal shall reverse the judgment of the first instance which was unlawful after the new procedural acts are conducted by legitimate procedure, and render a new judgment based on the deliberation result, such as statement and evidence examination, etc. at the court of appeal (see, e.g., Supreme Court Decision

2. The record reveals the following facts.

A. The Defendant appeared at the court of the first instance by the fourth trial date, and was unable to serve a writ of summons of the trial date of the Defendant on July 10, 2015, and the Defendant was absent on the fifth trial date on August 12, 2015. After that, the Defendant’s child was served on the Defendant at his domicile on August 20, 2015, but the Defendant was absent on the sixth trial date on October 7, 2015, and the Defendant was absent on the sixth trial date, and the Defendant’s spouse was served on the Defendant at his domicile on October 16, 2015, but the Defendant was absent on the seventh trial date on November 4, 2015.

B. On March 30, 2016, the court of first instance again sent a writ of summons to the defendant on the trial date and rendered a decision to serve the defendant by public notice on July 7, 2016 (hereinafter referred to as "decision of service by public notice in this case"). On October 22, 2016, the court of first instance (hereinafter referred to as "decision of service by public notice in this case"). On October 22, 2016, the court of first instance conducted the trial without the defendant's appearance in accordance with Article 23 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, etc. on the 24th trial date, and sentenced the defendant to one year of imprisonment without the defendant's appearance in accordance with Article 23 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, etc., on

D. A prosecutor filed an appeal on the grounds of unfair sentencing against the above judgment of the first instance court. When the documents of the lawsuit against the defendant were unable to be served due to the absence of closure, the court of the lower court received a request for detection of location against the defendant on October 10, 2017, and decided to serve the defendant by public notice on October 10, 2017. On January 10, 2018, the court dismissed the prosecutor’s appeal against the defendant on January 18, 2018, and became final and conclusive on January 18, 2018.

E. Upon becoming aware of the lower judgment’s pronouncement, the Defendant claimed restitution of the right to appeal on March 8, 2019, and the court recognized that the Defendant was unable to file an appeal within the period of appeal due to a cause not attributable to the Defendant, and rendered a decision to reinstate the right to appeal.

3. Examining these facts in light of the legal principles as seen earlier, the first instance court, on March 30, 2016, determined the service of the Defendant by public notice and rendered a judgment without a statement of the Defendant, only when the location of the Defendant was not verified by the lapse of six months since the date on which the service of the Defendant was impossible due to the Defendant’s failure to be served by public notice after the Defendant’s child and spouse was served with a writ of summons. Nevertheless, the first instance court, on July 7, 2016, rendered a service by public notice and rendered a judgment without the Defendant’s statement.

In the first instance judgment, the court below erred by misapprehending the legal principles on the validity of procedural acts conducted without the Defendant’s statement by public notice prior to the lapse of six months as stipulated in Article 19(1) of the Rules on Special Cases concerning the Promotion, etc. of Legal Proceedings, thereby adversely affecting the conclusion of the judgment. In addition, the court below erred by misapprehending the legal principles on the validity of procedural acts conducted without the Defendant’s statement by public notice, thereby adversely affecting the conclusion of the judgment.

Therefore, the defendant's ground of appeal pointing this out is with merit.

4. Therefore, 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.