Defendant

Defendant

Incheon District Court Order 2005Hu1288 dated July 8, 2005

The defendant's immediate appeal is dismissed.

1. Summary of grounds for appeal;

On October 14, 2004, Incheon District Court (Case No. 1 omitted) issued a summary order against the defendant, which was sentenced to a fine of three million won, and the copy of the summary order was delivered to the non-indicted who is a cohabitant at the defendant's residence on the 22th of that month. At that time, the defendant was working for a long time in the region as a day-time worker, and the defendant did not know that the above summary order was issued because he did not receive a certified copy of the above summary order because he did not know of the fact that the above summary order was issued because he did not receive a certified copy of the above summary order because he did not receive a fine from the public prosecutor's office. Such circumstance constitutes a case where the defendant could not request a formal trial within the period of request for formal trial due to a cause not attributable to the defendant, and thus, the court below dismissed it, notwithstanding the fact that the defendant received a claim for recovery of the defendant's right to request a formal trial, is unlawful.

2. Determination

A. Whether the service is lawful

According to Article 452 of the Criminal Procedure Act, notification of summary order to the defendant must be made by serving a written judgment on the defendant, and according to Article 186 (1) of the Civil Procedure Act applied mutatis mutandis under Article 65 of the same Act, if the person to be served is not present at the place to be served, documents may be delivered to the person with mental capacity to make a reasonable judgment, such as a cohabitant, and according to the records, a copy of summary order of this case can be recognized on October 22, 2004, and unless there are special circumstances, the non-indicted constitutes a person with intelligence to make a reasonable judgment under Article 186 (1) of the Civil Procedure Act, and thus, the service of a certified copy of summary order of this case is lawful.

B. Whether the period for claiming the recovery of the formal trial is observed

According to Articles 458 and 346(1) of the Criminal Procedure Act, a claim for recovery of the right to request formal trial should be submitted in writing within a reasonable period from the closing date of the claim for formal trial. According to the records, the defendant was notified by the prosecutor's office that he would pay a fine at latest. In other words, the defendant became aware of the fact that the summary order of this case was notified on April 6, 2005, when he first requested the recovery of the right to request formal trial of this case, and the reason for the claim for recovery of the right to request formal trial of this case remains final at that time. However, even though the claim for recovery of the right to request formal trial of this case was filed on June 24, 2005, which was more than seven days after the expiration of the period of the claim for formal trial of this case, the existence of the cause for formal trial of this case should not be further examined.

3. Conclusion

Therefore, the decision of the court below which dismissed the defendant's request for the restoration of the right to request formal trial is justifiable, so the defendant's immediate appeal of this case is dismissed in accordance with Article 414 (1) of the Criminal Procedure Act. It is so decided

Judges Kim Su-cheon (Presiding Judge)