[2] In a case where the first instance court conducted a trial in ordinary trial without confirming the defendant's intention as to the case subject to a participatory trial, the elements for remedy of procedural defects in the appellate trial

1. A participatory trial implemented pursuant to the former Act on Citizen Participation in Criminal Trials (amended by Act No. 11155, Jan. 17, 2012; hereinafter “the Act”) is a system introduced to enhance democratic legitimacy and trust of justice (Article 1 of the Act). As such, any person has the right to a participatory trial as prescribed by the Act (Article 3 of the Act). Accordingly, a case subject to a participatory trial pursuant to the Act and its rules is conducted according to the participatory trial procedure. However, in principle, a participatory trial shall not be held exceptionally only where a defendant does not want a participatory trial or a court decides to exclude a participatory trial on any of the grounds under Article 9(1) of the Act (Article 5(1) and (2) of the Act).

As above, since whether to hold a participatory trial is decided first by Defendant’s will, if a case subject to a participatory trial is indicted, the court must confirm Defendant’s desire to participate in the participatory trial in writing, etc. (Article 8(1) of the Act). To this end, Defendant or counsel must be served with a copy of the indictment, including the procedure for the participatory trial, submission of documents pursuant to Article 8(2) of the Act, restriction on change of intention pursuant to Article 8(4) of the Act, and other precautions (Article 3(1) of the Rules on Citizen Participation in Criminal Trials). If the court proceeds in the ordinary procedure without confirming Defendant’s desire to participate in the participatory trial, it is a serious violation of Defendant’s right to participate in the participatory trial, and the procedure is unlawful and procedural acts conducted in such unlawful procedure is also invalid (see Supreme Court Decision 2011Do7106, Sept. 8, 2011).

However, a participatory trial cannot be conducted against Defendant’s will except for a certain limitation (Article 8(4) of the Act) on the reversal of Defendant’s desire to a participatory trial. Thus, even if the first instance court conducted a trial in ordinary procedure without confirming Defendant’s desire to do so, it is reasonable to deem that the defect in the first instance trial is cured and the first instance trial is legitimate as a whole in its entirety in light of the purpose of the participatory trial system and the relevant provisions to substantially guarantee Defendant’s right to a participatory trial, if Defendant clearly expresses his intention not to be involved in the first instance trial’s procedural illegality (see Supreme Court Decision 201Do12526, Apr. 26, 2012). However, in order to deem that the defect in the first instance trial procedure infringing on the above right is cured, it is necessary to give Defendant sufficient guidance on Defendant’s participatory trial procedure, etc. and to know about Defendant’s desire to do so (see Supreme Court Decision 2012Do12525, Apr. 26, 2012).

2. According to the records, the first instance court has conducted a trial according to ordinary procedure and judged that all of the facts charged in this case is guilty. However, the charge of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes among the facts charged in this case is obvious that it constitutes a case eligible for a participatory trial pursuant to Article 5 (1) 2 of the Act, but the first instance court cannot find out any trace of confirming the defendant's desire for a participatory trial pursuant to the procedure provided in Article 8 (1) of the Act and Article 3 (1) of the above Rule. In this case, the court below should first examine whether the first instance court confirmed the defendant's desire for a participatory trial, and if the first instance court did not confirm it, it should have ordered the defendant about the participatory trial procedure, etc. in accordance with the above legal principles, and should have given a considerable time to consider whether the defendant want a participatory trial, but if the defendant does not want a participatory trial and clearly expresses his intention not to have any procedural illegality in the first instance trial procedure, then the first instance court's judgment should be reversed and remanded ex officio.

Nevertheless, the court below, without doing so, tried an appellate trial according to the ordinary procedure, and sentenced the defendant guilty. In this case, the court below erred by misapprehending the legal principles on the right to a participatory trial and procedural defect, thereby failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and 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 Justices on the bench

Justices Lee Sang-hoon (Presiding Justice)