[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

[3] In a case where the first instance court did not confirm whether the defendant in the case subject to a participatory trial wants a participatory trial and proceeded with the ordinary procedure of trial without confirming whether the defendant in the case subject to a participatory trial wants a participatory trial, and the court below stated that the defendant and his counsel did not have any objection to it on the first day, and thus dismissed the defendant's appeal on the second day of trial, the case holding that the court below dismissed the defendant's appeal on the premise that the defects in the first instance procedure

[2] A participatory trial cannot be held against the defendant's will with the exception of the time and procedure limitation under Article 8 (4) of the Act on Citizen Participation in Criminal Trials with respect to the reversal of the defendant's desire to hold a participatory trial. Thus, even if the first instance court conducted a participatory trial without confirming the defendant's intention to do so, if the defendant clearly expresses his intention not to have a participatory trial at the appellate court that the first instance court's procedural illegality is not an issue, the defect is cured and the first instance court's trial procedure is legitimate as a whole. However, in light of the purpose of the participatory trial system and the relevant provisions that practically aim to guarantee the defendant's right to a participatory trial, the defect in the first instance trial procedure infringing the above right should be corrected, in order to see that the defect in the first instance trial procedure is cured, it should be given a considerable time to give the defendant sufficient guidance about the participatory trial procedure and whether he wishes to do so in accordance with Article 8 (1) of the Act and Article 3 (1) of the Rules on Citizen Participation in

[3] The case holding that the court below erred by misapprehending legal principles in dismissing a defendant's appeal on the premise that the defect in the first instance trial procedure was legally cured in the court below's first instance court's first instance court's first instance court's trial procedure's ordinary trial procedure's ordinary trial procedure's ordinary trial procedure's ordinary trial procedure's ordinary trial procedure's defect is completely cured and its subsequent judgment cannot be deemed legitimate, although the court below's first instance court's defect in the first instance court's trial procedure's ordinary trial procedure's ordinary trial procedure's defect cannot be seen as being cured, since it decided that the defendant and his defense counsel did not raise any objection to the defendant's desire, since it decided that the defendant's appeal was dismissed on the second instance court's second day's trial procedure's defect in the first instance trial procedure's ordinary trial procedure's ordinary trial procedure's defect in the first instance court's ordinary trial procedure's ordinary trial procedure's procedural procedure's defect was not properly cured.

1. A participatory trial implemented pursuant to the Act on Citizen Participation in Criminal Trials (hereinafter “Act”) is a system introduced to enhance democratic legitimacy and trust of justice (Article 1 of the Act). Any person has the right to a participatory trial as prescribed by law (Article 3 of the Act). Thus, a case subject to a participatory trial pursuant to the Act and its rules is conducted according to the participatory trial procedure in principle. However, a participatory trial shall not be held exceptionally only where the defendant does not want a participatory trial or where 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 serve a guide on the participatory trial stating the procedure of 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 Rule). If the court proceeds in the ordinary procedure without confirming Defendant’s desire to participate in the participatory trial, it is unlawful as it seriously infringes Defendant’s right to participate in the participatory trial, and procedural acts conducted in such unlawful procedure should also be deemed null and void (see Supreme Court Decision 2011Do7106, Sept. 8, 2011).

However, a participatory trial cannot be conducted against the defendant's will except that there is a limitation of time and procedure under Article 8 (4) of the Act with respect to the reversal of the intention that the participatory trial should be conducted. Thus, even if the first instance court conducted a trial without confirming the defendant's intention to do so, if the defendant clearly expresses his intention that the first instance court does not want a participatory trial, it is reasonable to see that the defect is cured and the first instance court's trial procedure is legitimate as a whole. However, in light of the purpose of the participatory trial system and the related provisions that practically guarantee the defendant's right to a participatory trial, in order to see that the defect of the first instance trial procedure infringing on the above right is cured, a sufficient guidance about the participatory trial procedure and a considerable time to know about the defendant's desire to do so should be given in advance pursuant to Article 8 (1) of the Act and Article 3 (1) of the Rules.

2. According to the records, the first instance court did not confirm the defendant's desire for a participatory trial pursuant to Article 8 (1) 3 of the Act and Article 2 (1) 3 of the Rules of Article 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes among the facts charged in the case of this case, but proceeded with a trial according to ordinary procedure without confirming whether the defendant wants a participatory trial pursuant to the procedure under Article 8 (1) of the Act and Article 3 (1) of the Rules, and the court below stated that "the defendant and his defense counsel stated that "no objection is raised against the receipt of a general criminal trial without notice about a participatory trial at the first instance court" on the first trial date, and it did not have any problem any more, and after closing arguments on the same day, the court below dismissed the defendant's appeal on the second trial date.

However, in the case where the first instance court violated the defendant's right to a participatory trial and conducts an illegal procedure and accordingly the first instance court's procedural acts are all null and void, the court in charge of the appellate trial shall give the defendant sufficient guidance about the participatory trial procedure and considerable time to know about the defendant's desire in advance pursuant to the above legal principles pursuant to Article 8 (1) of the Act and Article 3 (1) of the Rules, so that the defendant can make a decision in relation thereto while substantially guaranteeing the defendant's right to a participatory trial. In this case where there is no evidence to support that the court below provided the above guidance and deliberation opportunity, the defendant and defense counsel stated that there is no objection against the fact that the defendant and defense counsel did not raise any objection to the fact that the first instance court's procedural defects were completely cured and the judgment thereby cannot be deemed legitimate.

Nevertheless, the court below affirmed the judgment of the court of first instance on the premise that the defect in the trial procedure, which infringed the defendant's right to a participatory trial, was legally cured at the court below, and dismissed the defendant's appeal. In so doing, the court below erred by misunderstanding the legal principles on the right to a participatory trial and ratification of such defect, which affected the conclusion

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 Kim Nung-hwan (Presiding Justice)