[공갈미수·사기·절도·여신전문금융업법위반][공2018상,854]
Whether the violation of Acts and subordinate statutes in litigation proceedings is applicable where the defendant or defense attorney completes the pleadings and declares a judgment without giving the opportunity to make a final statement (affirmative)
Article 303 of the Criminal Procedure Act provides, “The presiding judge shall give the defendant and his/her defense counsel an opportunity to make a final statement after hearing the prosecutor’s opinions.” As such, the opportunity to make a final statement should be given to all the defendant and his/her defense counsel. The opportunity to make a final statement is the right under the Civil Procedure Act of the defendant and his/her defense counsel, which is the last opportunity for the defendant and his/her defense counsel to assert the dispute of facts or the grounds favorable to sentencing. Therefore, closing the pleadings and rendering a judgment without giving the defendant or his/
Articles 303 and 383 subparag. 1 of the Criminal Procedure Act
[Plaintiff-Appellant] Plaintiff 1 et al. (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)
Defendant
Defendant
Law Firm Jeong-ju, Attorneys Kang Ho-ho et al.
Suwon District Court Decision 2017No6909 decided December 11, 2017
The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.
The grounds of appeal are examined.
Article 303 of the Criminal Procedure Act provides, “The presiding judge shall give the defendant and his/her defense counsel an opportunity to make a final statement after hearing the prosecutor’s opinions.” As such, the opportunity to make a final statement should be given to all the defendant and his/her defense counsel. The opportunity to make a final statement is the right under the Civil Procedure Act of the defendant and his/her defense counsel, which is the last opportunity to assert the dispute of facts or the sentencing favorable to the defendant and his/her defense counsel. Thus, the closing of pleadings and rendering a judgment without giving the defendant and his/her defense counsel an opportunity to make a final statement constitutes a violation of the law of litigation (see, e.g., Supreme Court Decision 75Do10
According to the records of this case, the lower court concluded pleadings on November 1, 2017 on the first trial date, and found the following facts: (a) the Defendant stated in the protocol of the first trial on the said trial date to the effect that “the Defendant Da Da c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c
Therefore, the court below, without giving the defendant an opportunity to make a final statement, ordered the conclusion of the pleading and the judgment. Therefore, the court below erred by violating the law regarding litigation procedures and thereby affecting the conclusion of the judgment. The ground of appeal pointing this out is with merit.
Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Cho Jae-chul (Presiding Justice)