[1] Requirements for an appellate court to render a judgment without a defendant's statement pursuant to Article 365 of the Criminal Procedure Act

[2] In a case where only the defendant requested a formal trial against a summary order, in which the court below concluded the pleading on the first trial date, set and notified the pronouncement date which is the second trial date, but the defendant did not appear, extended the third trial date and did not notify the defendant of the third trial date, the case holding that the court below's decision which ordered the third trial date by opening the third trial date without the defendant's appearance is unlawful

[1] According to Articles 370 and 276 of the Criminal Procedure Act, the appellate court may not revise the court without the defendant's appearance in the court. However, according to Article 365 of the same Act, if the defendant fails to appear in the court on the court date without justifiable grounds even though he/she did not appear in the court on the court date, the court may render a judgment without the defendant's statement. Thus, in order for the defendant to make a judgment without his/her statement without justifiable grounds even though he/she did not appear in the court on the court date, the case must be applicable where the defendant did not appear in

[2] In the appellate court of a case where only the defendant requested a formal trial against a summary order, in case where the court of original judgment concluded pleadings on the first trial date on which the defendant appeared and notified the second trial date which was the date for the second trial, but the third trial date was postponed and the defendant did not notify the third trial date separately, the case holding that Article 365 of the Criminal Procedure Act cannot be applied since no legitimate notice was given to the third trial date, and Article 370 and Article 277 subparagraph 4 of the Criminal Procedure Act can be sentenced without the defendant's appearance on the date initially designated pursuant to the summary order, but the court below's decision was unlawful on the ground that the date for the formal trial was postponed and the date for the second trial should be notified as long as the date for the pronouncement was re-designated, the court below's decision was made without the defendant's appearance.

[1] Articles 276, 365, and 370 of the Criminal Procedure Act / [2] Articles 276, 277 subparag. 4, 365, and 370 of the Criminal Procedure Act

[1] Supreme Court Decision 2005Do9291 Decided February 23, 2006, Supreme Court Decision 2009Do12430 Decided January 28, 201 (Gong2010Sang, 484) Supreme Court Decision 2010Do16538 Decided February 24, 201

Defendant

Defendant

Suwon District Court Decision 2011No3634 decided November 11, 2011

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

The grounds of appeal are examined.

According to Articles 370 and 276 of the Criminal Procedure Act, the appellate court may not revise the law without the defendant's appearance in the court of appeal. However, according to Article 365 of the same Act, if the defendant fails to appear in the court on the court date without any justifiable reason even though the defendant did not appear in the court on the court date, the court may render a judgment without the defendant's statement. Thus, in order for the defendant to make a judgment without his/her statement without a justifiable reason even though he/she was absent, it shall be applicable to the case where the defendant did not appear in the court on two consecutive occasions after receiving the notice of due court date (see Supreme Court Decision 2005Do9291, Feb. 23, 20

However, according to the records, the defendant appeared at the first trial date of the court below ( October 7, 201), and the court of original judgment after closing his pleading on the above trial date designated and notified the second trial date as October 28, 201, which was the second trial date, and the defendant did not appear on the trial date; the court of original judgment, extended the sentence date and designated November 11, 201 as the third trial date, but did not notify the defendant separately; and even if the defendant did not appear on the trial date, the court of original judgment dismissed the defendant's appeal.

According to the above legal principles, Article 365 of the Criminal Procedure Act cannot be applied since there was no notice of legitimate date of trial on the amendment of the third trial date. Nevertheless, the court of original judgment opened the above trial date without the attendance of the defendant and sentenced the above judgment. This constitutes an infringement of the defendant's right to attend under Articles 370 and 276 of the Criminal Procedure Act, which constitutes a violation of the law and the litigation procedure affected the conclusion of the judgment.

On the other hand, this case is a case where only the defendant applied for formal trial against the summary order. Thus, the court below was able to pronounce a judgment even without the defendant's appearance on the second trial date, which is the date of pronouncement originally designated pursuant to Article 370 and Article 277 subparagraph 4 of the Criminal Procedure Act. Nevertheless, as long as the date of pronouncement is extended and the date of pronouncement is re-designated, the court below's decision without following such procedures is still illegal.

Therefore, the judgment below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)