A. Application requirements of Article 365 of the Criminal Procedure Act

B. Whether measures by public notice were taken as a result of the impossibility of being served due to the absence of documents (negative)

A. Article 365 of the Criminal Procedure Act is a kind of restrictive provision that considers that a defendant has waived his right to pleading on the merits by neglect of his/her duty, so if he/she intends to have his/her responsibility for absence on two occasions, he/she does not appear in the court without justifiable reasons after obtaining a summons of legitimate court date on two occasions.

B. In a case where the appellate court served a writ of summons of the trial date on the defendant, to the place indicated in the indictment and the judgment of the court of first instance as the defendant's residence, but the service by public notice was impossible due to the absence of closure, and rendered a judgment without the defendant's statement, it would be in violation of Articles 63 (1) and 365 of the Criminal Procedure Act.

(a) Article 365 of the Criminal Procedure Act;

Supreme Court Decision 4288 Form7 Decided July 15, 1955

Defendant

Defendant

Seoul Criminal Court Decision 87No5670 delivered on February 10, 1988

The judgment of the court below is reversed, and the case is remanded to the Panel Division of the Seoul Criminal Court.

We examine the grounds of appeal.

Article 370 of the Criminal Procedure Act applies mutatis mutandis mutatis mutandis under Article 276 of the same Act, which provides that even in an appellate court, if a defendant fails to appear on the date of trial, an appellate court shall not open the court. However, Article 365 of the same Act, which falls under such special provisions, provides that the date shall be fixed again when the defendant fails to appear in the court on the date of trial, and if the defendant fails to appear in the court on the new date without justifiable grounds, a judgment may be rendered without the defendant's statement. This is a kind of punitive provision which considers that the defendant's neglect of duty to state his opinion may waive his right to state opinion on the merits, so if he intends to assume the responsibility of the non-appearance on two occasions, he need not attend the court on

According to the records, the court below served a writ of summons of the trial date on the indictment and the judgment of the court of first instance as the dwelling of the defendant (the second floor of 548 (2) in Seoul, Seoul), but served a writ of summons of the first trial date on the defendant's dwelling. However, it is clear that service by public notice can be made only when the dwelling, office and present address of the defendant are unknown, and it can be made only when the dwelling of the defendant cannot be done if the dwelling of the defendant is clearly recorded in the record, and it can not be done if the dwelling of the defendant, etc. is clearly recorded in the indictment and the judgment of the court of first instance (the second floor of 548 (2) in Seoul), but it did not take any other measure when the service of the writ of summons of the trial date was impossible due to the absence of closure, and the service of the summons could not be done on the ground that the service of the defendant was in violation of the provisions of the Criminal Procedure Act Article 36(1)6(3).

Therefore, the judgment of the court below is reversed without any need to determine other issues, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-sung (Presiding Justice)

[Omission]

Justices Kim Yong-sung-sung and a quasi-overseas trip unable to affix a name and seal (Presiding Justice)