성폭력범죄의처벌등에관한특례법위반(주거침입강간등)
The judgment of the court below is reversed.
The case is remanded to the Seoul Central District Court.
1. In light of the circumstances against the Defendant in light of the gist of the Prosecutor’s Reasons for Appeal, the sentence imposed by the lower court (two years and six months of imprisonment, and four years of suspended execution) is too unhued and unreasonable.
2. We examine ex officio prior to the judgment on the grounds for appeal.
The facts charged in the instant case prosecuted on January 17, 2013 are those subject to a participatory trial under Article 5(1)1 of the Act on Citizen Participation in Criminal Trials (hereinafter referred to as the “Act”), Article 32(1)3 of the Court Organization Act, Article 3(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, Articles 319(1) and 298 of the Criminal Act.
However, a participatory trial is a system introduced to enhance the democratic legitimacy and trust of the judiciary (Article 1 of the Act). Since any person has the right to a participatory trial as provided by law (Article 3 of the Act), a case subject to a participatory trial shall proceed in accordance with the participatory trial procedure. 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 because there are reasons provided by each subparagraph of Article 9
(Article 5(1) and (2) of the Act. Whether a participatory trial is held or not is decided primarily by the defendant's will, if a case subject to a participatory trial is indicted, the court shall confirm to the defendant whether he/she wants a participatory trial in writing, etc. (Article 8(1) of the Act). For this purpose, the court shall deliver to the defendant or his/her counsel a guide on the participatory trial stating the procedure for a participatory trial, submission of a document under Article 8(2) of the Act, restriction on the change of opinion under Article 8(4) of the Act, and other precautions.
[Rules on Citizen Participation in Criminal Trials (hereinafter “Rules”)
Article 3(1) [Article 3(1)] If the court finds this provision to be a defendant.