[1] The legal representative's right to file a complaint

[2] Requirements for a judgment without the defendant's statement under Article 365 of the Criminal Procedure Act

[3] Requirements for service by publication

[1] Since the right to file a complaint by a legal representative under Article 225(1) of the Criminal Procedure Act is given to the legal representative for the protection of an incompetent person, the legal representative may file a complaint regardless of whether the right to file a complaint is extinguished by the victim, and such right may also be exercised against the express intent of the victim.

[2] According to Articles 370 and 276 of the Criminal Procedure Act, the appellate court may not open the court without the attendance of the defendant. However, according to Article 365 of the same Act, if the defendant does not appear in the court on the court date, the court may fix the new date and render a judgment without the defendant's statement if the defendant does not appear in the court on the new court date without justifiable grounds. However, in order to render a judgment without the defendant's statement, the defendant needs not appear in the court without justifiable grounds after receiving a summons of legitimate

[3] Service by public notice can only be made when the dwelling, office or present location of the defendant is unknown under Article 63 (1) of the Criminal Procedure Act, and if the dwelling, office or present location of the defendant appears in the record, it shall not be made.

[1] Article 225 (1) of the Criminal Procedure Act / [2] Article 365 of the Criminal Procedure Act / [3] Article 63 (1) of the Criminal Procedure Act

[1] Supreme Court Decision 87Do857 delivered on June 9, 1987 (Gong1984, 1686), Supreme Court Decision 87Do857 delivered on September 11, 1984 (Gong1987, 1165) / [2/3] Supreme Court Decision 88Do419 delivered on December 27, 198 (Gong1989, 254), Supreme Court Decision 95Do920 delivered on July 14, 1995 (Gong195Ha, 2853), Supreme Court Decision 97Do1371 delivered on September 26, 197 (Gong197Ha, 3340) / [3] Supreme Court Order 88Do45 delivered on September 28, 198, 197 (Gong1985, 197Mo3865, Jul. 36, 1987)

Defendant

Defendant

Attorneys Shin Jin-jin et al.

Daegu High Court Decision 95No683 delivered on August 13, 1996

The conviction part of the judgment below is reversed and that part of the case is remanded to the Daegu High Court.

1. As to each of the grounds of appeal No. 1 by the state appointed defense counsel and two attorneys Lee Dong-dong and others

Since the right to file a complaint by a legal representative under Article 225(1) of the Criminal Procedure Act is given to his/her legal representative for the protection of an incompetent person, his/her legal representative may file a complaint regardless of the victim's termination of the right to file a complaint (see, e.g., Supreme Court Decisions 84Do1579, Sept. 11, 1984; 87Do857, Jun. 9, 1987). Such right to file a complaint may also be exercised against the victim's express intent. In this regard, the court below held that, inasmuch as the victim revoked the complaint against the defendant on July 26, 1995, the victim's legal representative before the prosecution was instituted, but his/her legal representative revoked the complaint against the defendant on Aug. 3, 1995, which was before the prosecution was instituted, the procedure for instituting the rape in this case cannot be viewed as violating the provisions of the Act, contrary to what is alleged in the grounds of appeal.

2. As to the Defendant’s grounds of appeal and the attorney Lee Dong-dong and two others’ grounds of appeal No. 2

According to Articles 370 and 276 of the Criminal Procedure Act, the appellate court may not open the court without the attendance of the defendant. However, according to Article 365 of the same Act, when the defendant does not appear in the court on the court date, the court may determine a new date and render a judgment without the defendant's statement if the defendant does not appear in the court on the new court date without any justifiable reason. However, in order to render a judgment without the defendant's statement, the defendant need not appear in the court without justifiable reasons after receiving a summons of legitimate court date (see, e.g., Supreme Court Decisions 95Do920, Jul. 14, 1995; 97Do1371, Sept. 26, 1997).

According to the records, in the hearing of the defendant case, the court below deemed the defendant's residence as the main apartment located in the 1st, Seogu, Daegu-gu, the address of the defendant in the indictment and the judgment of the court of first instance, and sent a writ of summons to the defendant. On January 3, 1996, the defendant's mother received it on February 7, 196 and March 6, 196 of the same year, which was the second trial date, and it was impossible to serve the defendant on the ground of the addressee's absence and director's unknown whereabouts. On March 7, 196 of the same year, only the above apartment was stated as the address and requested the chief of the police station to find the defendant's whereabouts, but it was not possible to identify the defendant's whereabouts, the fifth trial date of March 17 of the same year, which was the fifth trial date, and decided and notified the defendant's summons to serve by public notice on April 17 of the same year, which was the six trial date, and rejected the judgment of the court below.

However, service by public notice can only be made when the dwelling, office or present location of the defendant is unknown under Article 63(1) of the Criminal Procedure Act, and if the dwelling, office or present location of the defendant appears in the records, it can not be made (see Supreme Court Order 83Mo55 delivered on September 28, 1984).

According to the records, the actual dwelling of the defendant at the time of this case is "a apartment located in the middle-gu, Daegu-gu, Seoul-gu, the apartment located in the apartment of the defendant's senior 2, who is the house of the defendant's senior 2, and one of the crimes of rape stated in the indictment is stated in the above apartment house, and although the above apartment house was actually stated in the records, such as the fact that the victim's cancellation of the complaint was made through the opinion of the non-indicted 2, etc. during the detention of the defendant, the court below can find that the above apartment was not sent a writ of summons or taken measures such as detection of the location, etc. once for the above apartment. Thus, the court below's decision of conviction without the defendant's statement was delivered by service by public notice by concluding that the dwelling of the defendant cannot be known only on the ground of the above circumstance, and it constitutes a violation of Articles 63 (1) and 365 of the Criminal Procedure Act, and it affected the conclusion of the judgment.

3. Therefore, the conviction part of the judgment of the court below is reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating judges.

Justices Cho Cho-Un (Presiding Justice)