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The judgment below is reversed, and the case is remanded to the Gwangju District Court.
Reasons
The grounds of appeal are examined.
1. According to Articles 370 and 276 of the Criminal Procedure Act, the appellate court may not revise the law without the attendance of the defendant. However, Article 365 of the Criminal Procedure Act provides that when the defendant does not appear in the court on the trial date of appellate trial, the court may re-determine the date and render a judgment without the statement of the defendant if the defendant does not appear in the court on the new trial date without justifiable grounds.
The Act stipulates.
In order for an appellate court to render a judgment without a defendant's statement, it is necessary that the defendant does not appear in the court without a justifiable reason after receiving a summons of due date of trial (see Supreme Court Decision 2002Do2520, Sept. 24, 2002). In addition, according to Article 63 (1) of the Criminal Procedure Act, service of public notice to the defendant can be made only when the dwelling, office, and present location of the defendant is unknown. Thus, in the event the defendant's home number or mobile phone number, etc. on the record, it should be viewed that the place for service by contact with the telephone number and the place for service by public notice should be confirmed, and delivery by public notice without taking such measures is not permitted as it violates Articles 63 (1) and 365 of the Criminal Procedure Act.
In addition, the above legal principle also applies to the case where the defendant knew that the lawsuit was pending, and the defendant did not report his residence to the court, and thus no service is made thereby, the court shall serve the documents by means of public notice.
This is because the court's decision based on the above illegal public disclosure service procedure is not legitimate because the defendant did not report his/her residence change even though the procedure for public disclosure service is clearly unlawful (Supreme Court Decisions 2009Do12430 Decided January 28, 2010; 201Do1210 Decided December 8, 201; 201Do347 Decided March 29, 2012).