The scope of adjudication by the court of final appeal and the scope of grounds for appeal by the defendant

Articles 364 and 384 of the Criminal Procedure Act

Supreme Court Decision 2006Do2104 Decided June 30, 2006, Supreme Court Decision 2008Do3808 Decided July 24, 2008, Supreme Court Decision 2008Do8661 Decided February 12, 2009

Defendant

Defendant

Attorney Lee E-Ba

Seoul Central District Court Decision 2012No16-1 (Separation) Decided August 30, 2012

The appeal is dismissed.

The grounds of appeal are examined.

1. According to Article 63(1) of the Criminal Procedure Act, when the dwelling, office, or present address of a defendant is unknown, service by public notice may be made. Articles 23 of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings, Articles 18(2) and (3), and 19 of the Rules on Special Cases Concerning Promotion, etc. of Legal Proceedings, etc., and Articles 18(2) and (3), and 19 of the Rules on Special Cases Concerning Promotion, etc. of Legal Proceedings, where the location of a defendant cannot be confirmed until six months have passed since he/she received a report on impossibility of service to the defendant even though he/she had taken necessary measures to confirm the location of the defendant, the service by public notice shall be made. In cases where the defendant fails to appear at the court on two or more occasions, without a statement of the defendant, if the defendant fails to appear at the court on the trial date by public notice as above, the service by public notice shall be again made.

According to the records, the first instance court ordered the defendant to serve a summons of the trial date on the domicile of the defendant who was corrected by the prosecutor after the completion of the trial while the defendant was present at the trial and the pleading was resumed, but it was impossible to serve the writ of summons of the trial date due to the addressee's unknownness. The defendant's cell phone, etc. was not confirmed even after the location detection of the chief of the police station, and the defendant's location was not confirmed due to the result of the request by the chief of the police station, etc. In addition, the court ordered the service of the defendant by public notice. Since the defendant was not summoned by public notice at least two times, the court proceeded without the defendant's statement and tried again without the defendant's statement and tried again, and sentenced the first instance court. The court also sent the defendant's statement of reasons for appeal and a duplicate of the notification of reasons for appeal to the defendant's address as corrected by the prosecutor, but it is impossible to serve the defendant's cell phone with the defendant's cell phone, and ordered service by public notice to the defendant.

In light of the above legal provisions, the first instance court and the lower court’s above measures are justifiable, and contrary to what is alleged in the grounds of appeal, there is no violation of the proper procedure or infringement of the defendant’s right of defense or procedural right under the Constitution and the Criminal Procedure Act, or any violation of the law or misunderstanding

2. Since the court of final appeal is ex post facto review of the judgment of the appellate court, matters not subject to the judgment of the appellate court are not limited to the scope of the judgment of the court of final appeal, so it cannot be a legitimate ground of final appeal. Furthermore, even if the judgment of the court of final appeal and the court of first instance maintained by the court of final appeal examine the evidence duly admitted by the court of final appeal, the defendant cannot be viewed as the grounds of final appeal for reasons other than those not asserted as the grounds of appeal in the appellate court or subject to the judgment of the appellate court ex officio (see, e.g., Supreme Court Decisions 2006Do2104, Jun. 30, 2006; 2008Do3808, Jul. 24, 2008). The court below's assertion that there was an error of law in the misapprehension of facts due to violation of the rules of free evaluation of evidence by the prosecutor of the first instance judgment and the court of first instance, the court below's conviction of all of the facts charged in this case is just and without merit.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)