Open Decision Ledger · Criminal & investigative procedure
Unlawful public summons and the deadline to withdraw the desire to punish
Supreme Court, Nov. 30, 2022, 2022Do11786 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 근로기준법위반·근로자퇴직급여보장법위반·최저임금법위반
Official text on the National Law Information Center
Question
When the first-instance court summoned the defendant by an unlawful public summons and tried him in his absence, what must the appellate court do, and may the victim withdraw the desire to punish before the appellate judgment where the defendant sought restoration of his right of appeal rather than a retrial?
Holding
Where the first-instance court summoned the defendant by an unlawful public summons and tried him in his absence so that the first-instance judgment must be reversed, the appellate court must resume the proceedings lawfully and give judgment on the basis of its own hearing and evidence. The victim may withdraw the desire to punish before the first-instance judgment of a retrial opened under Article 23-2 of the Special Act, but not in appellate proceedings the defendant reached by restoring his right of appeal, because that appellate procedure is not the first instance, so a withdrawal made after the first-instance judgment cannot ground a dismissal of the prosecution under Article 327(6) of the Criminal Procedure Act.
Points at issue, verbatim
이때 피고인이 제1심법원에 재심을 청구하는 대신 상소권회복청구를 하여 항소심 재판을 받게 된 경우, 항소심 절차에서 처벌을 희망하는 의사표시를 철회할 수 있는지 여부(소극)
Unofficial English translation
In such case, where the defendant, instead of filing a claim for retrial with the court of first instance, filed a claim for restoration of the right to appeal and was tried at the appellate instance, whether the expression of a desire for punishment may be withdrawn in the appellate proceedings (negative)
Disposition
Dismissed Stated in the decision
상고를 기각한다.
Unofficial English translation
The appeal is dismissed.
Form of the test
Existing test applied Read from the decision
원심이 제1심에서의 피고인에 대한 공소장 부본 송달의 효력이 있음을 전제로 피고인에 대한 공소장 부본 송달을 생략한 뒤 피고인에 대한 인정신문부터 다시 소송절차를 진행하고 증거조사를 거쳐 원심판결을 선고한 것은 정당하고, 거기에 소송절차에 관한 법령을 위반한 잘못이 없다.
Unofficial English translation
On the premise that the service of a copy of the indictment upon the defendant in the court of first instance was valid, the court below omitted the service of a copy of the indictment upon the defendant, resumed the litigation proceedings from the examination of the defendant as to identity, and, after taking evidence, pronounced the judgment of the court below; and such is proper, and there is no error therein of violating statutes and regulations concerning litigation proceedings.
Factors
- 제1심이 위법한 공시송달로 피고인을 소환한 후 피고인의 출석 없이 재판한 경우, 항소심이 취해야 할 조치
- 반의사불벌죄 사건에서 처벌을 희망하는 의사표시의 철회 시한을 제1심판결 선고 전까지로 제한한 형사소송법 제232조 제1항 및 제3항의 취지
- 피고인이 책임을 질 수 없는 사유로 공판절차에 출석할 수 없었다는 이유로 같은 법 제23조의2에 따라 제1심법원에 재심을 청구하여 재심개시결정이 내려진 경우
- 피고인이 제1심법원에 재심을 청구하는 대신 상소권회복청구를 하여 항소심 재판을 받게 된 경우
Unofficial English translation
• Measures to be taken by the appellate court where the court of first instance, having summoned the defendant through unlawful service by public notice, tried the case without the defendant's attendance
• The purport of Article 232 (1) and (3) of the Criminal Procedure Act, which limited the deadline for withdrawing the expression of a desire for punishment to the time before pronouncement of the judgment of the court of first instance, in a case involving an offense that cannot be punished against the victim's express will
• Where the defendant filed a claim for retrial with the court of first instance pursuant to Article 23-2 of the same Act on the ground that he or she had been unable to attend the trial proceedings for a reason not attributable to him or her, and a commencement decision for retrial was rendered
• Where the defendant, instead of filing a claim for retrial with the court of first instance, filed a claim for restoration of the right to appeal and was tried at the appellate instance
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2016. 11. 25. 선고 2016도9470 판결(공2017상, 63)
Unofficial English translation
Supreme Court Decision 2016Do9470 decided November 25, 2016 (Gong 2017 Sang, 63)
Decisions referred to
[1] 대법원 2012. 4. 26. 선고 2012도986 판결(공2012상, 954), 대법원 2015. 5. 28. 선고 2015도4121 판결 / [2] 대법원 1999. 4. 15. 선고 96도1922 전원합의체 판결(공1999상, 970) / [3] 대법원 2002. 10. 11. 선고 2002도1228 판결(공2002하, 2776), 대법원 2016. 11. 25. 선고 2016도9470 판결(공2017상, 63)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
If a retrial-commencement ruling is later set aside or the retrial application is dismissed after the victim has withdrawn the desire to punish before the first-instance judgment of the retrial, what effect does that withdrawal have?
A later Supreme Court decision treating appellate proceedings after restoration of the right of appeal as the first instance for the withdrawal deadline would change this reading, as would an amendment to Article 232 of the Criminal Procedure Act or to Articles 23 and 23-2 of the Special Act. The procedural history here, in which the appellate court resumed from the arraignment, shows what the appellate remedy looks like in practice.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 6 of the 8 axes; the readings differed on axis 4 (form of the test), axis 8 (open question and revisit condition).
Axis 4 (Form of the test): Primary “Existing test applied” vs Independent “Elements stated”
The primary frames the standard as applying the facts to the rule, while the independent frames it as stating requirements; both describe the same test and the need for caution.
피고인이 제1심법원에 재심을 청구하는 대신 상소권회복청구를 하여 항소심 재판을 받게 된 경우, 항소심 절차에서 처벌을 희망하는 의사표시를 철회할 수 있는지 여부(소극)Axis 8 (Open question and revisit condition): Primary “If a retrial-commencement ruling is later set aside or the retrial application is dismissed after the victim has withdrawn the desire to punish before the first-instance judgment of the retrial, what effect does that withdrawal have?” vs Independent “How should an appellate court proceed if service of the indictment itself was invalid as well as service by publication?”
The primary asks about the effect of a withdrawal if the retrial commencement is later set aside, while the independent asks how the appeal should proceed if service of the indictment itself was invalid.
이때 피고인이 제1심법원에 재심을 청구하는 대신 상소권회복청구를 하여 항소심 재판을 받게 된 경우, 항소심 절차에서 처벌을 희망하는 의사표시를 철회할 수 있는지 여부(소극)Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Seoul Central District Court, sitting on appeal, in its judgment of 6 September 2022 (2021No3109), treated the service of the indictment copy on the defendant in the first instance through his wife as effective, omitted service afresh, resumed the procedure from the arraignment, took evidence and sentenced the defendant to six months' imprisonment with a two-year suspension, where the first-instance court had made a public summons order on 24 June 2021 and sentenced the defendant to six months' imprisonment in his absence on 31 August 2021. It also held that even if the desire to punish had been withdrawn after the first-instance judgment, a judgment dismissing the prosecution could not be given under Article 327(6) of the Criminal Procedure Act, because the defendant had obtained restoration of his right of appeal on 27 October 2021 rather than a retrial.
Supreme Court standard: The Supreme Court found no error on either ground. On procedure, it held that where the first-instance trial was unlawful and its judgment therefore had to be reversed, the appellate court must resume the procedure lawfully and decide on its own hearing and evidence, and that proceeding from the arraignment without re-serving the indictment copy, on the premise that the first-instance service was effective, was proper. On the withdrawal, it held that Article 232(1) and (3) of the Criminal Procedure Act limits withdrawal to before the first-instance judgment as a matter of legislative policy, that a victim may withdraw before the first-instance judgment of a retrial, but that appellate proceedings reached by restoring the right of appeal are not the first instance, so the court below rightly refused a dismissal of the prosecution, and it dismissed the appeal in the unanimous opinion of the Justices concerned.
Distinguishing conditions
- A case in which the defendant applies for a retrial under Article 23-2 of the Special Act and a retrial-commencement ruling is made, since the victim may withdraw before the first-instance judgment of that retrial.
- A case in which the victim withdraws the desire to punish before the first-instance judgment is pronounced, since Article 232(1) and (3) of the Criminal Procedure Act allow withdrawal up to that point.
- A case in which the appellate court cannot premise the effectiveness of the first-instance service of the indictment copy, so that it must serve the copy afresh and conduct the procedure from the beginning.
Record verification notes
Set the file against three points before relying on this decision: how the defendant returned to the trial, by a retrial application under Article 23-2 of the Special Act or by restoration of the right of appeal; whether the public summons was unlawful and whether the first-instance service of the indictment copy was effective, since the appellate court skipped re-service only on that premise; and when the victim's withdrawal was made, because on this reasoning only a withdrawal before the first-instance judgment of a retrial is effective. Note also that the defendant here had received the indictment copy through his wife and had not appeared from the first hearing.
From the official text
Points at issue
[1] 제1심이 위법한 공시송달로 피고인을 소환한 후 피고인의 출석 없이 재판한 경우, 항소심이 취해야 할 조치 [2] 반의사불벌죄 사건에서 처벌을 희망하는 의사표시의 철회 시한을 제1심판결 선고 전까지로 제한한 형사소송법 제232조 제1항 및 제3항의 취지 [3] 제1심법원이 반의사불벌죄로 기소된 피고인에 대하여 소송촉진 등에 관한 특례법 제23조에 따라 피고인의 진술 없이 유죄를 선고하여 판결이 확정되었는데, 피고인이 책임을 질 수 없는 사유로 공판절차에 출석할 수 없었다는 이유로 같은 법 제23조의2에 따라 제1심법원에 재심을 청구하여 재심개시결정이 내려진 경우, 피해자는 재심의 제1심판결 선고 전까지 처벌을 희망하는 의사표시를 철회할 수 있는지 여부(적극) / 이때 피고인이 제1심법원에 재심을 청구하는 대신 상소권회복청구를 하여 항소심 재판을 받게 된 경우, 항소심 절차에서 처벌을 희망하는 의사표시를 철회할 수 있는지 여부(소극)
Unofficial English translation
[1] Measures to be taken by the appellate court where the court of first instance, having summoned the defendant through unlawful service by public notice, tried the case without the defendant's attendance [2] The purport of Article 232 (1) and (3) of the Criminal Procedure Act, which limited the deadline for withdrawing the expression of a desire for punishment to the time before pronouncement of the judgment of the court of first instance, in a case involving an offense that cannot be punished against the victim's express will [3] Where the defendant, having been indicted for an offense that cannot be punished against the victim's express will, was found guilty by the court of first instance without any statement of the defendant pursuant to Article 23 of the Act on Special Cases concerning Expedition of Legal Proceedings and the judgment became final and conclusive, and thereafter the defendant filed a claim for retrial with the court of first instance pursuant to Article 23-2 of the same Act on the ground that he or she had been unable to attend the trial proceedings for a reason not attributable to him or her, and a commencement decision for retrial was rendered, whether the victim may withdraw the expression of a desire for punishment by the time of pronouncement of the judgment of the court of first instance on retrial (affirmative) / In such case, where the defendant, instead of filing a claim for retrial with the court of first instance, filed a claim for restoration of the right to appeal and was tried at the appellate instance, whether the expression of a desire for punishment may be withdrawn in the appellate proceedings (negative)
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
상고를 기각한다.
Unofficial English translation
The appeal is dismissed.
Provisions referred to
[1] 형사소송법 제63조 제1항, 제276조, 제364조 제2항 [2] 형사소송법 제232조 제1항, 제3항 [3] 형사소송법 제232조 제1항, 제3항, 제345조, 제424조, 소송촉진 등에 관한 특례법 제23조, 제23조의2
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