[1] Requirements for an appellate court to render a judgment without a statement in the absence of the defendant

[2] The case holding that the court below erred in violating Article 365 of the Criminal Procedure Act regarding the measure of the court below, in case where the defendant and his defense counsel did not appear at the court below's first and second court date, and the defendant did not appear together with his defense counsel on the third court date, and the defendant did not appear together with his defense counsel on the fourth court date, and the court below decided to dismiss the defendant's appeal by revising the court date without the defendant's appearance, where the defendant and his defense counsel did not appear at the fifth court date.

[1] In principle, the appellate court may not revise the law without the defendant's appearance (Articles 370 and 276 of the Criminal Procedure Act). However, where the defendant fails to appear in the court on the court date without justifiable grounds even though the defendant did not appear in the court on the court date but did not appear in the court on the court date (Article 365 of the Criminal Procedure Act). In order to render a judgment without the defendant's statement without justifiable grounds, it should be applicable where the defendant fails to appear in the court on two consecutive occasions after receiving the notice of due date of trial without justifiable grounds.

[2] In a case where the defendant appealed after having been convicted of violation of the Road Traffic Act at the court of first instance, and was present at the court of first instance, and only defense counsel was present at the third court date, and the defendant did not appear at the court on the third court date for health reasons, but the court below concluded the pleadings and notified the fifth court date for the trial, and the defendant and defense counsel did not appear at the fifth court date, and the court below decided to dismiss the defendant's appeal by amending the court date without the defendant's appearance, the case held that the court below erred by misapprehending Article 365 (2) of the Criminal Procedure Act, which affected the conclusion of the judgment by amending the fifth court date without the defendant's appearance, on the grounds that even if the defendant did not appear at the fifth court date on the fifth court date, which was notified, even if he did not appear on the fifth court date, it did not constitute a case where he did not appear on the second court date on two consecutive occasions without any justifiable reasons, and thus, it cannot be revised the fifth court date without the defendant's appearance.

[1] Articles 276, 365, and 370 of the Criminal Procedure Act / [2] Articles 44(1) and 148-2(2)2 of the former Road Traffic Act (Amended by Act No. 15530, Mar. 27, 2018); Articles 276, 365, and 370 of the Criminal Procedure Act

[1] Supreme Court Decision 2005Do9291 Decided February 23, 2006, Supreme Court Decision 2011Do16166 Decided June 28, 2012 (Gong2012Ha, 1365)

Defendant

Defendant

Attorney Lee Jong-soo et al.

Suwon District Court Decision 2018No7987 decided April 10, 2019

The judgment of the court below is reversed, and the case is remanded to Suwon District Court.

The grounds of appeal are examined.

1. In principle, the appellate court may not revise the law without the defendant's appearance (Articles 370 and 276 of the Criminal Procedure Act): Provided, That where the defendant fails to appear in the court on the court date without justifiable grounds even though the defendant did not appear in the court on the court date and did not appear in the court, the court may render a judgment without the defendant's statement (Article 365 of the Criminal Procedure Act). In order to render a judgment without the defendant's statement while the defendant was absent, the case must be applicable where the defendant did not appear in the court on two consecutive occasions without justifiable grounds (see Supreme Court Decision 2005Do9291, Feb. 23, 2006, etc.).

2. According to the record, the following facts are revealed.

A. On January 16, 2019, the Defendant appeared at the first trial date of the lower court. The lower court accepted the Defendant’s request for the selection of a private defense counsel on the said trial date, and delayed pleadings, and designated the second trial date as March 6, 2019 and notified the second trial date.

B. On March 6, 2019, the Defendant appeared together with a private defense counsel on the second day of the lower court on the second day, and the lower court accepted a defense counsel’s request for preparing pleadings on the said date, and, while delaying pleadings, designated and notified the third court date as March 13, 2019.

C. A defense counsel submitted an application to change the trial date to the lower court on March 12, 2019, but the lower court rejected the application, and the defense counsel was present only on the third trial date of the lower court notified as above, and the Defendant did not appear on the grounds of health. The lower court, while delaying pleadings to re-re-appeal the Defendant, designated and notified the fourth trial date as March 22, 2019.

D. On March 22, 2019, the Defendant appeared together with his/her defense counsel on the fourth trial date of the lower court, and the lower court, upon closing the pleadings, designated and notified the date on April 10, 2019, which was the fifth trial date.

E. On April 10, 2019, the Defendant and his defense counsel did not appear on the fifth trial date of the lower court, and the lower court, without the attendance of the Defendant, rendered a judgment dismissing the Defendant’s appeal.

3. Examining these facts in light of the legal principles as seen earlier, insofar as the Defendant did not appear on the fourth trial date of the lower court, which is the fifth trial date notified by the Defendant, even if he did not appear on the fifth trial date of the lower court, it does not constitute the case where the Defendant did not appear on the second trial date without justifiable reasons. Therefore, the lower court cannot revise the fifth trial date pursuant to Article 365(2) of the Criminal Procedure Act. Nevertheless, the lower court’s decision was rendered by amending the fifth trial date without the Defendant’s appearance, and thus, the lower court’s measure was erroneous and adversely affected the conclusion of the judgment contrary to Article 365 of

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.

Justices Lee Dong-won (Presiding Justice)