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(영문) 대법원 2019.08.29 2019도8617
권리행사방해
Text

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

Reasons

The grounds of appeal are examined.

1. With respect to a case that does not fall under death penalty, imprisonment with or without labor for an indefinite term, or imprisonment with or without labor for a long term exceeding ten years, special cases concerning the trial proceedings in the first instance are allowed pursuant to Article 23 of the Act on Special Cases concerning Promotion, etc. of Legal Proceedings (hereinafter “Special Provisions”), and where the whereabouts of the defendant cannot be confirmed even after six months have passed since a report on the failure to serve on the defendant was received, a trial may be conducted without a statement

However, in case where a defendant who was convicted pursuant to the special provisions of this case, was unable to attend the trial due to a cause for which the judgment becomes final and conclusive, he may request a retrial to the court of first instance within 14 days from the date on which he became aware of the fact that the judgment was rendered pursuant to Article 23-2 (1) of the above Act (hereinafter “the provisions of this case”), and if he could not request a retrial for the said period due to a cause not attributable to him, he may request a retrial to the court of first instance within 14 days from the date on which such cause ceases

According to the special provisions of this case and the language, text, and legislative intent of the provision of this case, even in a case where the first instance court, which was proceeded pursuant to the special provisions of this case, appealed only to the prosecutor, and the appellate court also proceeded with the non-appearance trial, and the judgment of conviction becomes final and conclusive, the first instance court’s judgment is reversed, and the new or new conviction is rendered, and the defendant, who was unable to attend the first instance court and the appellate court’s trial without any cause attributable to it, may request the appellate court for a review of the conviction

In this case, if the defendant filed an appeal by the recovery of the right to appeal without filing a request for review, and asserts the above reasons as the grounds of appeal, Article 383 of the Criminal Procedure Act.

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