(b) Acquisition of third-party brain;

(c) Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes;

D. Violation of the Electronic Financial Transactions Act

(e) Violation of the Act on the Aggravated Punishment of Specific Economic Crimes

(f) Offering of bribe;

(g) Delivery of third-party brain;

2.mafab. B

DJ Law Firm (for Defendant A)

Attorney DR, BV, BW, DV

Attorney DW (Korean War for Defendant B)

Attorney N (for the defendant B)

Defendant B’s appeal is dismissed.

According to the records, since the defendant appealed against the judgment of the court of first instance and claimed only unfair sentencing as the grounds for appeal, the argument that the judgment of the court below erred by mistake of facts or misapprehension of legal principles is not a legitimate ground for appeal.

In addition, under Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed, an appeal on the grounds of unfair sentencing is allowed. Thus, in this case where a more minor sentence has been imposed on the defendant, the argument that the sentencing of

2. We examine the Defendant A’s grounds of appeal ex officio prior to the determination thereof.

A. A participatory trial implemented under the former Act on Citizen Participation in Criminal Trials (amended by Act No. 11155, Jan. 17, 2012; hereinafter referred to as the "Act") is a system introduced to enhance the democratic legitimacy and trust of justice (Article 1 of the Act). As a matter of principle, any person has the right to a participatory trial under the Act (Article 3(1) of the Act), a case subject to a participatory trial under the Act shall proceed according to the participatory trial procedure. However, if the defendant does not want a participatory trial or the court decides to exclude a participatory trial due to a reason under each subparagraph of Article 9(1) of the Act, it is not exceptionally a participatory trial (Article 5(1) and (2) of the Act). Thus, if a case subject to a participatory trial is instituted, the court must check whether the defendant wants a participatory trial, if any, by means of writing, etc. [Article 8(1) of the Act), and submission of a copy of the indictment to the defendant or his counsel’s right to participate trial under Article 8(1).

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 participatory trial without confirming Defendant’s desire to do so, if Defendant clearly expresses his/her intention not to seek a participatory trial at the appellate court, it is reasonable to deem that such defect is cured and the first instance trial procedure is legitimate as a whole. However, in light of the purpose of the participatory trial system and the relevant provisions that intend to substantially guarantee Defendant’s right to a participatory trial, a participatory trial procedure defect in the first instance court’s trial procedure infringement of the above right should be resolved, in accordance with Article 8(1) of the Act and Article 3(1) of the Rules, sufficient guidance on the participatory trial procedure should be given to Defendant and considerable time to know whether Defendant wishes to do so (see Supreme Court Decision 2012Do125, Apr. 26, 2012).

B. According to the records, the first instance court was conducting a trial in accordance with ordinary procedure and found guilty of all the charges of this case. However, even though it is evident that the delivery and receipt of good brain in the facts charged of this case constitutes a case eligible for a participatory trial under Article 5(1)2 of the Act, the first instance court cannot find a trace of confirming the defendant's desire for a participatory trial in accordance with the procedure prescribed in Article 8(1) of the Act and Article 3(1) of the Rules. In this case, the first instance court 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, then the court should have reversed the first instance court's judgment after giving sufficient guidance to the defendant about the participatory trial procedure, etc., and given considerable time to consider whether the defendant wishes for a participatory trial, and even if the defendant did not want a participatory trial, it should have judged whether the procedural error in the first instance court can be seen as being cured by the first instance court's trial procedure, and should have reversed the first instance court's judgment 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. Conclusion

Without examining Defendant A’s grounds of appeal, the part on Defendant A among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. Defendant B’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-young

Justices Kim Yong-deok

Justices Kim In-young