특정범죄가중처벌등에관한법률위반(도주차량)등
The judgment of the court below is reversed.
The case is remanded to the Incheon District Court Panel Division.
1. Summary of grounds for appeal;
A. In this case, it is unlawful for the court below to proceed to the ordinary trial without confirming the intention of the participatory trial, even though the case was under the jurisdiction of the collegiate panel, which was subject to a participatory trial.
B. The sentence of the lower court on the Defendant’s sentence of unreasonable sentencing (five years of imprisonment) is too unreasonable.
2. Violation of the procedure of the court below
A. A participatory trial implemented pursuant to the relevant legal principles and the Act on Citizen Participation in Criminal Trials (hereinafter “Act”) is a system introduced to enhance democratic legitimacy and trust of the judiciary (Article 1 of the Act). Since any person has the right to a participatory trial as prescribed by the Act, cases eligible for a participatory trial pursuant to the Act and the rules have the right to a participatory trial (Article 3 of the Act). Thus, a participatory trial is conducted according to the participatory trial procedure. However, a participatory trial is not conducted exceptionally only where the defendant does not want a participatory trial or where a court decides to exclude because
(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/it wants a participatory trial in writing, etc. (Article 8(1) of the Act). To do so, the court shall deliver to the defendant or his/her defense counsel a guide on the participatory trial stating the procedure for a participatory trial, submission of documents pursuant to Article 8(2) of the Act, restriction on the change of opinion pursuant to Article 8(4) of the Act, and other precautions.
(Article 3(1) of the Rules on Citizen Participation in Criminal Trials. Notwithstanding these provisions, the court shall take the procedure to confirm whether the accused wants a participatory trial.