[1] Whether consent of evidence is given pursuant to Article 318(2) of the Criminal Procedure Act in a case where a defendant who has requested a formal trial in response to a summary order twice fails to appear and conducts an examination of evidence without the defendant's appearance in court (affirmative)

[2] Whether the admissibility of evidence is lost even if the court of first instance present at the appellate court and expresses its intention to revoke or revoke the consent, so long as the examination of evidence is completed after considering the consent of evidence in the appellate court (negative)

[3] The case affirming the judgment of the court of first instance which maintained the measure of the court of first instance which granted admissibility of evidence by considering the admissibility of evidence as evidence upon the defendant's submission of evidence to the prosecutor's prosecutor's rejection of evidence two times in response to the summary order against the summary order

[1] Articles 458(2) and 365 of the Criminal Procedure Act provide that the defendant shall not appear in court and shall be deemed to have waived the right to present on the merits. In such a case, the examination of evidence may be conducted without the defendant's appearance in court without the defendant's appearance in court and the examination of evidence shall be conducted as part of the public trial, and where the defendant is unable to appear in court, regardless of the defendant's intention under Article 318(2) of the above Act, the legislative purport of Article 318(2) of the above Act is deemed to have consented under Article 318(1) of the above Act. The legislative purport of Article 318(2) of the above Act is the necessity and swiftness of the trial, i.e., the prevention of litigation delay following the defendant's failure to decide the admissibility of hearsay evidence in case of the delay of litigation due to the defendant's non-ex officio or the defendant's non-explication of evidence.

[2] As long as the defendant who has requested a formal trial in objection to a summary order made two times at the first instance court of the formal trial procedure and completed the examination of evidence after deeming the consent of evidence pursuant to Article 318(2) of the Criminal Procedure Act, the consent of the person concerned may be withdrawn or withdrawn before the examination of evidence is completed, but the consent of the evidence may not be revoked or withdrawn after the examination of evidence is completed, and the conclusion of the consent of the evidence is made regardless of the defendant's intention. Thus, even if the defendant expresses his/her intention to withdraw or revoke the consent of the evidence deemed to have been admitted while he/she appears in the appellate court and denies the facts charged, the admissibility legally granted by

[3] The case affirming the judgment of the court of first instance which maintained the measure of the court of first instance which granted admissibility of evidence by considering the consent of evidence as to the evidence submitted by the prosecutor when the defendant, who requested a formal trial in response to the summary order, was absent twice in the formal trial procedure

[1] Articles 318(2), 365, and 458(2) of the Criminal Procedure Act / [2] Articles 318(2), 365, and 458(2) of the Criminal Procedure Act / [3] Articles 318(2), 365, and 458(2) of the Criminal Procedure Act

[1] Supreme Court Decision 91Do865 delivered on June 28, 1991 (Gong1991, 2077) Supreme Court Decision 2002Do326 delivered on April 12, 2002, Supreme Court Decision 2009Do1803 Delivered on June 11, 2009

Defendant

Defendant

Seoul Eastern District Court Decision 2007No275 Decided June 28, 2007

The appeal is dismissed.

The grounds of appeal are examined.

The Criminal Procedure Act (hereinafter referred to as the "Act") provides that "where a defendant does not appear in the court without a defendant's appearance in the court, if the defendant does not appear in the court, the consent of the defendant shall be deemed to have been obtained." (Article 318(2)) Meanwhile, the Criminal Procedure Act provides that "If the defendant who has requested a formal trial due to objection to a summary order fails to appear in the court on the date of the formal trial, the new date shall be fixed, and if the defendant fails to appear in the court on the new date without a justifiable reason, a judgment may be made without a defendant's statement." (Articles 458(2) and 365).

Articles 458(2) and 365 of the Act provide that the defendant shall not appear in court and shall be deemed to have given his consent under Article 318(1) of the Act, regardless of the defendant's intention, if the defendant does not appear in court (see Supreme Court Decision 2009Do1803, Jun. 11, 2009). In such a case, a trial decision may be rendered without the defendant's appearance in court and the examination of evidence may be conducted as part of the public trial trial, and if the defendant does not appear in court, the court shall be deemed to have given his consent under Article 318(2) of the Act regardless of the defendant's intention under Article 318(2) of the Act (see Supreme Court Decision 91Do865, Jun. 28, 191); the legislative purport of Article 318(2) of the Act is the necessity of the trial; i.e., where the defendant requests the admissibility of evidence of the defendant's appearance in the summary order without the defendant's appearance.

In addition, as long as the defendant who has requested a formal trial due to the objection to the summary order made two times in the first instance court of the formal trial procedure and the consent of evidence is deemed to have been made pursuant to Article 318(2) of the Act and the evidence examination has been completed, the consent of the person concerned may be withdrawn or withdrawn before the examination of evidence is completed, but the consent of the evidence is not recognized after the examination of evidence is completed, and the consent of the evidence is deemed to have been made regardless of the defendant's intention, etc., even if the defendant expresses his/her intention to withdraw or revoke the consent of the evidence deemed to have been admitted while he/she appears in the appellate court and denies the facts charged, the admissibility

In the same purport, the court below maintained the first instance court's measure which granted admissibility by deeming the evidence submitted by the prosecutor as evidence pursuant to Article 318 (2) of the Act, while the defendant, who requested a formal trial in response to the summary order of this case, was absent by the defendant twice in the formal trial procedure, and maintained it as it is in the appellate court. In light of the record in light of the above legal principles, it is just and acceptable, and there are no errors in the misapprehension of legal principles as to the admission of evidence and the withdrawal or revocation thereof.

In addition, in light of the evidence duly admitted by the first instance court, which maintained the reasoning of the lower judgment, the remaining grounds of appeal by the Defendant merely criticizes the selection of evidence and the recognition of facts, which are the exclusive authority of the lower court, which is the fact-finding court, and thus does not constitute legitimate grounds of appeal. In so doing, the lower court’s determination of guilty of the facts charged of this case on grounds of its reasoning is justifiable and there

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

Justices Shin Young-chul (Presiding Justice)