(영문) 대법원 2014.3.13.선고 2014도221 판결

According to Articles 370 and 276 of the Criminal Procedure Act, an appellate court may not, in principle, revise the court without a defendant's appearance in court: Provided, That when a defendant fails to appear in court on the appellate court date pursuant to Article 365 of the Criminal Procedure Act, a judgment may be rendered without a defendant's statement if the defendant fails to appear in court on the new trial date without a justifiable ground. In order to render a judgment without a defendant's statement, it is necessary that the defendant does not appear in court without a justifiable ground even after being summoned on the legitimate trial date (see Supreme Court Decision 2010Do1199, Feb. 9, 2012,

According to the records, the court below delivered the defendant a notice of receipt of the trial record, etc. to the last dwelling place and the address corrected by the prosecutor as stated in the judgment of the court of first instance, but it is impossible to serve the defendant by mail for the reason that the recipient was unknown and closed, and telephone conversations between the defendant and the defendant cannot be made even if the defendant was requested to detect the location of the office of the defendant, and then served the defendant by public notice, and then served the defendant with a notice of receipt of trial records, notice of appointment of state appointed defense counsel, notice of statement of grounds of appeal, and defendant's summons, etc. on the first trial date by public notice. ② The court below delayed arguments because the defendant was not present on the first trial date, and the defendant was present on the second trial date, and the third trial date was the witness, D's examination of witness, and the fourth trial date was the examination of evidence on the fourth trial date; ③ However, the court below did not serve a summons on the defendant by public notice or by public notice on the fourth trial date; ④ The court below did not serve a summons on the defendant by public notice.

Examining these facts in light of the legal principles as seen earlier, the lower court revised the second, third, and fourth trial date without lawful summons against the Defendant and proceeded with pleadings and rendered a judgment accordingly. In so doing, the lower court erred by misapprehending the Acts and subordinate statutes related to litigation procedures, such as Article 365 of the Criminal Procedure Act, and thereby affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

Therefore, without further proceeding to decide on 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.