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(영문) 광주지방법원 2016.01.26 2015노2831
사기등
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not more than ten months.

Reasons

1. The decision of the court below (one year and six months of imprisonment) on the gist of the grounds of appeal is too unreasonable.

2. Article 23 of the Act on Special Cases Concerning the Promotion, etc. of Ex officio Judgment Proceedings and Articles 18(2), 18(3), and 19(1) of the Enforcement Rule of the same Act provide that where the whereabouts of the defendant is not confirmed even though the defendant took necessary measures to confirm the whereabouts of the defendant, service of documents on the defendant shall be made by means of serving public notice. According to Article 63(1) of the Criminal Procedure Act, service of documents on the defendant may be made only when the defendant's residence, office, and present whereabouts are unknown. Thus, service by the method of serving public notice without taking such measures is unlawful.

In this regard, the court below conducted a trial after serving the defendant's residence, office, and present location on the ground that although the defendant's mother A, AK, and B's cell phone numbers were stated in the investigation records, the court below did not contact with the above cell phone and served the defendant by the method of public notice service on the ground that the defendant's residence, office, and present location cannot be known. The court below's procedure that revised the procedure while the defendant was absent from office, which led to the court below's decision, was erroneous in violation of Article 63 (1), Article 365 of the Criminal Procedure Act, or Article 23 of the aforementioned Act, etc.

Therefore, the judgment of the court below cannot be maintained as it is.

3. Thus, the judgment of the court below is reversed ex officio pursuant to Articles 364(2) and 364(6) of the Criminal Procedure Act without examining the defendant's improper assertion of sentencing, and the judgment of the court below is reversed, and it is again decided as follows through pleading.

Criminal facts.

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