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The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for one year.
However, the period of two years from the date this judgment becomes final and conclusive.
Reasons
1. Summary of grounds for appeal;
A. The Defendant was unable to attend the trial of the lower court due to a cause not attributable to him. Therefore, the lower court erred by misapprehending the legal doctrine on the grounds of a request for retrial under Article 23-2(1) of the Act on Special Cases concerning Promotion, etc. of Legal Proceedings
B. The sentence of the lower court’s unfair sentencing (one year of imprisonment) is too unreasonable.
2. Determination
A. 1) In a case where a defendant was found guilty due to his/her absence pursuant to the main sentence of Article 23 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (hereinafter “Special Provisions”), and the judgment becomes final and conclusive, if the defendant is unable to attend a trial due to a cause not attributable to him/her, he/she may request a retrial for the conviction pursuant to Article 23-2(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (hereinafter “Special Provisions”).
However, with respect to the judgment of the first instance, which became final and conclusive upon conviction without a defendant's statement pursuant to the special provisions of this case, where the defendant filed a petition for recovery of appeal on the grounds that the defendant or his agent could not file an appeal within the period for filing an appeal due to a cause not attributable to him/her, and where such cause includes circumstances in which the defendant could not be present in the trial due to a cause not attributable to him/her, it is reasonable to deem that the grounds for appeal corresponding to "when a cause for requesting a retrial exists" as prescribed in Article 361-5 subparagraph 13 of the Criminal Procedure Act is asserted by the provisions of this case.
Therefore, in the case above, the appellate court should examine whether the grounds for the request for retrial under the provisions of the retrial of this case exist, and there are such grounds.
If it is recognized, the judgment of the first instance court is reversed and new.