2015 No. 53 (Joint Attachment Orders)

High 15(Joint Judgment) Judgment

The case is remanded to the Gwangju District Court's Circuit Branch Panel Division.

(a) The defendant case;

① The Defendant and the person against whom the attachment order was requested (hereinafter referred to as the “Defendant”) did not commit the instant crime; ② the punishment (one year and six months of imprisonment) imposed by the lower court is too unreasonable; and ③ there is no risk of recidivism against the Defendant, and thus, the disclosure notification order is also unreasonable.

(b) Cases of attachment orders;

Since the Defendant did not commit the instant crime and did not have any risk of recidivism, an electronic device attachment order for location tracking devices is inappropriate.

2. Ex officio determination

Before determining the grounds for appeal by the defendant, it is examined whether the procedure for confirmation and exclusion of the citizen's participation trial is legitimate in accordance with the Act on Citizen Participation in Criminal Trials (hereinafter referred to as the "National Participation Trial Act").

According to the records, on July 30, 2015, the prosecutor first filed a prosecution against the defendant's case with the Gwangju District Court's office (2015Da1387) on the same court on September 2, 2015 (hereinafter referred to as "order to attach an electronic device"). On September 7, 2015, the court below, which is the collegiate panel of the above court, decided that the defendant's case will be tried concurrently with the attachment order case pursuant to Article 10 of the Criminal Procedure Act, and accordingly, the records of trial and evidence provided by Article 4 (3) of the Regulation on Criminal Procedure were sent, and as a result, the defendant's case is found to be the collegiate panel of the case (2015Da1666).

According to Article 5(1)1 of the Act on the Citizen Participation Trial, Article 32(1)6 of the Court Organization Act, and Article 7(2) of the Act on Probation and Electronic Monitoring, Etc. of Specific Criminal Offenders (hereinafter “Electronic Devices Attachment Act”), Defendant case and attachment order case belong to the jurisdiction of the collegiate panel and are subject to citizen participation trial. According to the records, the lower court issued “written confirmation/information of citizen participation trial” to the victim on October 13, 2015, and the Defendant submitted a written confirmation of intention to proceed to the citizen participation trial of this case on October 15, 2015, and the lower court, without additional measures, notified Defendant of his/her intention to participate trial on October 16, 2015, and notified Defendant of his/her intention to participate in the citizen participation trial of his/her intention to participate in the citizen participation trial of this case on the date of trial of October 16, 2015.

A court may make a decision not to proceed to a participatory trial in a case falling under any subparagraph of Article 9 (1) of the Act on the participatory Trial from the date a public prosecution was instituted to the date following the end of preparatory hearing. However, in light of the reasons why a participatory trial was conducted or various provisions of the Act on the participatory Trial, a defendant has the right to proceed to a participatory trial in principle. Thus, if a defendant applied for a participatory trial without making a decision not to proceed to a participatory trial but to proceed to a ordinary participatory trial without making a decision not to proceed to a participatory trial, it is unlawful as it infringes on the defendant's right to a participatory trial and the court's right to appeal against a decision not to proceed to a participatory trial. In light of the purport of introducing the participatory trial system or the purport of guaranteeing the right to appeal against a decision not to proceed to a participatory trial under the Act on the participatory Trial, litigation conducted in the following unlawful participatory trial shall be deemed null and void (see Supreme Court Decision 2011Do7106, Sept. 8, 2011).

As seen earlier, the lower court infringed the Defendant’s right to a participatory trial by proceeding the third trial date of the lower court without making a decision of exclusion even though the Defendant applied for a participatory trial. In addition, in making a decision of exclusion, the lower court violated the Defendant’s right to appeal against the decision of exclusion by failing to comply with the procedure, such as making oral notification on the trial date and hearing the opinions of the prosecutor, the Defendant, or his defense counsel by opening a preparatory hearing and hearing the opinions of the prosecutor, the Defendant

On the other hand, a participatory trial cannot be conducted against Defendant’s will except for a certain limitation (Article 8(4) of the Act on Citizen Participation) on the reversal of Defendant’s wish. Thus, if Defendant’s appellate trial explicitly expresses his/her intention not to take issue of procedural illegality in the first instance trial while Defendant does not want a participatory trial, such defect is cured and the first instance trial is legitimate as a whole (see, e.g., Supreme Court Decision 2012Do1225, Apr. 26, 2012). However, the Defendant submitted a written confirmation that the instant case was tried to be tried as a participatory trial on March 25, 2016 at the trial. Thus, there is no room for remedy for the said defect.

Therefore, the litigation procedure conducted by the court below in the trial proceedings in an unlawful manner as above shall be deemed null and void, and the judgment of the court below is erroneous as affecting the judgment in violation of the law.

3. Conclusion

The judgment of the court below is reversed in its entirety in accordance with Article 364(2) of the Criminal Procedure Act and Article 35 of the Electronic Devices Installation Act, on the ground that the above ground for ex officio reversal exists. In addition, the trial procedure for a participatory trial is bound to be conducted in the court of first instance (see Articles 5, 6, 10, and 11 of the Citizen Participation Trial Act). The court below needs to re-trial because it is necessary to correct the above procedural gross illegality, and therefore, Article 366 of the Criminal Procedure Act applies mutatis mutandis, and the case is remanded to the Gwangju District Court Netcheon District Court 200

Sheet iron

Kim Sung-ju