[Defendant] Defendant
[Appellant] Defendant
[Defense Counsel] Attorney Park Heon-hong, Haesong Law Firm (LLC)
[Judgment Below] Seoul Central District Court Judgment 2021No3109, decided September 6, 2022
[Order]
The appeal is dismissed.
[Reasoning]
The grounds of appeal are examined.
1. As to the grounds of appeal concerning the illegality of the proceedings in the court below
A. If the summons of the defendant by way of service by public notice was unlawful and the first-instance proceedings, which were conducted without the defendant's appearance at the trial date, were thereby unlawful, so that the first-instance judgment rendered accordingly must be reversed, the appellate court must newly conduct the litigation acts again through lawful procedures and then render a new judgment based on the results of the trial, including the statements and examination of evidence conducted in the appellate court (see Supreme Court Decision 2012Do986, decided April 26, 2012; Supreme Court Decision 2015Do4121, decided May 28, 2015, etc.).
B. According to the reasoning of the judgment below and the record, the following facts may be found.
1) The Defendant received a copy of the indictment and a summons for the Defendant, etc. through his wife in the first instance, but did not appear from the first trial date onward. The first-instance court rendered a decision on June 24, 2021 to serve the Defendant by public notice, and on August 31, 2021, at the eighth trial date, sentenced the Defendant to six months' imprisonment without the Defendant's appearance.
2) On October 1, 2021, the Defendant filed a request for restoration of the right to appeal against the first-instance judgment, and on October 27, 2021, the court granted the restoration of the right to appeal on the ground that the decision to serve the Defendant by public notice was unlawful.
3) The court below did not serve a copy of the indictment on the Defendant, but conducted the litigation procedure anew starting from the confirmation of identity, and after conducting the examination of evidence, sentenced the Defendant to six months' imprisonment with two years' suspension of execution.
C. Examining the above facts in light of the legal principles set forth above, it was proper for the court below, on the premise that the service of the copy of the indictment on the Defendant in the first instance was effective, to omit service of the copy of the indictment on the Defendant, and instead to conduct the litigation procedure anew starting from the confirmation of the Defendant's identity, and after conducting the examination of evidence, to render the judgment below; there is no error in violation of the statutes concerning litigation procedure.
2. As to the grounds of appeal concerning the timing of withdrawal of the expressed intention to seek punishment in a crime subject to the victim's expressed intention (crime not prosecutable against the victim's will)
A. Article 232, Paragraphs 1 and 3 of the Criminal Procedure Act (형사소송법) provide that, in cases of crimes not prosecutable against the victim's expressed will (반의사불벌죄), the expression of intention to seek punishment may be withdrawn before the pronouncement of the first-instance judgment. The question of up to what point the withdrawal of the expressed intention to seek punishment in such cases should be limited is a matter of legislative policy concerning the operation of criminal procedure; the above provision may be understood as uniformly limiting the deadline for withdrawal to the time of pronouncement of the first-instance judgment, for the purpose of preventing the exercise of the State's power to punish from being left, for a prolonged period, subject to the victim's will (see Supreme Court en banc Decision 96Do1922, decided April 15, 1999).
Where the first-instance court, pursuant to Article 23 of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings (소송촉진 등에 관한 특례법, hereinafter referred to as the "Act on Expedition of Trials"), rendered a guilty judgment against a defendant prosecuted for a crime not prosecutable against the victim's expressed will without the defendant's statement, and the judgment became final, if the defendant, on the ground that he or she was unable to appear at the trial proceedings for reasons not attributable to him or her, requested a retrial from the first-instance court pursuant to Article 23-2 of the Act on Expedition of Trials, and a decision to commence retrial was made, the victim may withdraw the expressed intention to seek punishment before the pronouncement of the first-instance judgment in that retrial (see Supreme Court Decision 2002Do1228, decided October 11, 2002). However, if the defendant, instead of requesting a retrial from the first-instance court, filed a request for restoration of the right to appeal and thereby received an appellate trial, the appellate proceedings cannot be regarded as the first instance, and therefore the expressed intention to seek punishment cannot be withdrawn in such appellate proceedings (see Supreme Court Decision 2016Do9470, decided November 25, 2016).
B. Examining the reasoning of the judgment below in light of the above legal principles, it was proper for the court below to determine, for the reasons stated therein, that even if the expressed intention to seek punishment was withdrawn after the pronouncement of the first-instance judgment, a judgment of dismissal of the prosecution pursuant to Article 327, Item 6 of the Criminal Procedure Act could not be rendered; there is no error in misapprehending the legal principles concerning the timing of withdrawal of the expressed intention to seek punishment in crimes not prosecutable against the victim's expressed will.
3. Conclusion
Therefore, the appeal is dismissed, and this judgment is rendered as stated in the Order by the unanimous opinion of the Justices participating.
Justice Roh Tae-ak (Presiding Justice), Park Jung-hwa (Justice in Charge), Kim Sun-soo, Oh Kyung-mi