(영문) 대법원 2019.7.10. 선고 2019도5497 판결

1. In a case where a judgment of conviction in the first instance becomes final and conclusive by dismissing the prosecutor’s appeal after only the prosecutor appealeds the trial of the first instance, in which the defendant was absent pursuant to Article 23 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, and the appellate court also dismissed the prosecutor’s appeal after the non-appearance of the defendant, such appeal constitutes “when the defendant was unable to attend the trial of the first instance and the appellate court without any cause attributable to the defendant and filed an appeal through recovery of the right to appeal,” which constitutes “when the ground for appeal prescribed by Article 383 subparag. 3 of the Criminal Procedure Act exists” (see, e.g., Supreme Court en banc Decision 2014Do17252, Jun. 25, 2015; Supreme Court Decision 2015Do105

2. The record reveals the following facts.

A. The first instance court served a writ of summons, etc. by public notice pursuant to Article 23 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings and served a trial in the absence of the defendant, and sentenced the defendant to ten months of imprisonment. The prosecutor appealed from this issue on the grounds of unfair sentencing. The lower court served a writ of summons, etc. by public notice and served the prosecutor’s appeal by dismissing the prosecutor’s appeal after the defendant was absent under Article 365 of the Criminal Procedure Act.

B. The Defendant is not aware of the fact that a public prosecution was instituted due to the failure to be served with the duplicate of the indictment.As the lower court became aware of the pronouncement, the Defendant filed a petition for recovery of the right to appeal, and the court recognized that the Defendant’s failure to file an appeal within the period of appeal was due to a cause not attributable to the Defendant.

3. Examining these facts in light of the legal principles as seen earlier, the first instance court was conducted pursuant to Article 23 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, where the Defendant was absent due to a cause not attributable to him, and the judgment of the lower court also rendered a judgment dismissing the appeal by going through a trial with the absence of responsibility for the Defendant. Therefore, the lower court’s ground for requesting a retrial exists, and this constitutes the ground for appeal as provided in Article 383 subparag. 3 of the Criminal Procedure Act. Ultimately, the Defendant’

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, 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.