[1] Whether the service of litigation documents by means of service by public notice is illegal to the defendant, who is attending a detention house or prison, etc. (affirmative), and the measures taken by the court to be taken when service by public notice is made to the defendant whose residence, office, present location, etc

[2] The case holding that where the court of the first instance served documents by means of service on the defendant, who was confined to a separate case, and sentenced him to a conviction after having been present at the court without the attendance of the defendant, and the defendant thereafter appeared at the court of original instance upon receiving a decision to recover his right to appeal, the court below's decision that the court below found the defendant guilty only with evidence adopted and investigated by the court of first instance without

[1] Where a defendant is confined to a detention house or prison, etc., the case cannot be seen as "when the dwelling, office, present address of the defendant is unknown" or "where the whereabouts of the defendant cannot be confirmed" as stipulated under Article 63 (1) of the Criminal Procedure Act or Article 23 of the "Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings". Thus, the court's delivery of a copy of indictment and a writ of summons, etc. to the defendant under confinement through service by public notice, as well as the service of a copy of indictment to the defendant under confinement by public notice, should be deemed unlawful. Therefore, when the court serves a service by public notice to the defendant whose whereabouts such as dwelling, office, present address, etc., it

[2] Where the first instance court served documents by means of service by public notice on the defendant, and subsequently served the defendant at the trial without the attendance of the defendant, and the defendant later served at the trial date after receiving a decision of recovery of his right of appeal, the case holding that the court below's judgment of conviction against the defendant is unlawful on the ground that the service of documents to the defendant by the first instance court is unlawful and all the proceedings of the first instance court conducted based on illegal service by public notice are unlawful, since the first instance court's service by public notice on the premise that the service by public notice by public notice by public notice by the first instance court is legitimate, and the court below

[1] Article 63(1) of the Criminal Procedure Act, Article 23 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings / [2] Article 63(1) of the Criminal Procedure Act, Article 23 of the Act on Special Cases concerning

Defendant

Defendant

Suwon District Court Decision 2012No5124 decided February 6, 2013

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.

1. Where a defendant is confined to a detention house or prison, etc., the case cannot be deemed to fall under “where the whereabouts of the defendant cannot be confirmed” under Article 23 of the Criminal Procedure Act, or “where the whereabouts of the defendant are unknown” under Article 63(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings. Thus, the court’s delivery of a copy of indictment and a writ of summons, etc. to the defendant under guard by means of public notice should be deemed unlawful, as well as the delivery of a copy of indictment to the defendant under guard by means of public notice, etc., as well as the delivery of a copy of indictment to the defendant under guard by public notice. Therefore, the court needs to confirm whether the defendant

2. According to the records, the first instance court, on May 11, 2012, determined that the service of the defendant to the defendant by public notice was to be made as of May 11, 2012, and followed the trial without the attendance of the defendant by means of service, such as a copy of indictment, a writ of summons of the date of trial, etc., which should be served on the defendant, and sentenced the defendant to a fine of KRW 5 million. The defendant was confined to the Seoul detention center from August 29, 2011 to March 21, 201, and was serving as a prison after March 21, 2012. As long as the service was made by means of service by public notice to the defendant under guard, this is unlawful in light of the legal principles as seen earlier, and the above first instance court proceeding, which was initiated based on this, is all unlawful.

In addition, according to the reasoning of the judgment below and the records, even though the defendant was present at the court below's decision on the recovery of the right of appeal, the court below found the defendant guilty on the sole basis of evidence adopted and examined by the court of first instance without conducting any new procedural acts. In other words, the court below seems to have proceeded with the procedure on the premise that the service by public notice in the court of first instance is legitimate. However, if the defendant appears to have participated in the procedure, it cannot avoid restrictions on procedural rights, such as that it would be impossible for the defendant to deny the effect of examination of evidence even though the procedure was lawful. Furthermore, if the prosecutor appealeds the court of first instance on the ground of unfair sentencing after the non-appearance by public notice in the court of first instance, and the court of appeal became final and conclusive formally after the judgment in the appellate court became final and conclusive on the grounds of unfair sentencing, it may not be deemed that the defendant did not appeal against the judgment in the court of first instance, even if the defendant received the decision on the recovery of the right of appeal, and thus, it cannot be viewed as unlawful.

3. Therefore, without examining 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.

Justices Kim Chang-suk (Presiding Justice)