[2] The case holding that the first instance court's defect in the trial procedure was cured, in case where the first instance court did not confirm whether the defendant wants a participatory trial and found him guilty, and the court below asked whether he wants a participatory trial and delivered a guide, delayed the sentence date, and the defendant expressed his intention that "not want to proceed to a participatory trial" through a reply and a written confirmation of intention for a participatory trial

[2] In a case where the first instance court affirmed the first instance court's judgment and acquitted the defendant on the injury caused by indecent act subject to a participatory trial without confirming whether he/she wants a participatory trial, and found him/her guilty on the ground that the court below asked whether he/she wants to be tried as a participatory trial on the seventh trial day, extended the sentencing date, and then submitted a reply and a written confirmation of intent to participate in a participatory trial, and the defendant submitted a confirmation of intention to participate in a participatory trial and submitted it to "not want to be tried as a participatory trial," the case holding that even if the first instance court infringed the defendant's right to participate in a participatory trial, and the first instance court proceedings are invalid accordingly, the court below informed the defendant about the participatory trial and gave him/her an opportunity to know about the participatory trial, and the defendant clearly expressed his/her intention that the first instance court's procedural illegality will not be solved, and therefore, the defect in the first instance trial proceedings was 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 the Act (Article 3(1) of the Act). Thus, a case subject to a participatory trial pursuant to the Act shall proceed according to 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 a participatory trial on any of the grounds under Article 9(1) of the Act (Article 5(1) and (2) of the Act).

As such, 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, restrictions on change of intention pursuant to Article 8(4) of the Act, and other precautions (Article 3(1) of the Rules on Citizen Participation in Criminal Trials (hereinafter “Rules”). If a court proceeds in the ordinary procedure without confirming Defendant’s desire to participate in the participatory trial, it is a serious violation of Defendant’s right to participate in the participatory trial, and the procedure is unlawful 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 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 trial in ordinary procedure without confirming Defendant’s desire to do so, it is reasonable to see that the defect in the first instance trial is cured and the first instance trial is legitimate as a whole, in case where Defendant clearly expresses his intention not to be involved in the first instance trial’s procedural illegality because Defendant does not want a participatory trial at the appellate court. 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, the defect in the first instance trial procedure infringing on the above right should be cured, in accordance with Article 8(1) of the Act and Article 3(1) of the Rules, sufficient guidance should be given to Defendant on the participatory trial procedure and considerable time should be given in advance as to whether Defendant wishes to do so (see Supreme Court Decision 2012Do125, Apr. 26, 2012).

2. According to the records, although the first instance court issued a notice of the injury caused by indecent act among the facts charged in this case constitutes a case eligible for a participatory trial pursuant to Article 5(1)1 of the Act, it did not confirm whether the defendant wants a participatory trial according to the ordinary procedure pursuant to Article 8(1) of the Act and Article 3(1) of the Rules, and judged that all of the facts charged in this case is guilty. On October 20, 2011, the lower court made a statement that "the defendant wants to be tried as a participatory trial on the seventh day of October 20, 201," and stated that "the defendant would have been ordered to be tried immediately by the appellate court," and again issued a notice of the defendant's intention to participate in the participatory trial, "if the defendant wants to participate in the participatory trial, he may want it by stating his desire to have a participatory trial confirmation document and submit it to the court on the first day of October 14, 201."

In light of the above legal principles, even if the first instance court violated the defendant's right to a participatory trial and proceeds illegally in the procedure and thus, the first instance court's procedural defect in the first instance trial is cured, since the defendant informed the defendant about the participatory trial as above and provided an opportunity to know about the participatory trial, and the defendant clearly expressed his/her intention not to want a participatory trial after he/she became aware of the first instance court's procedural defect in the first instance trial.

Therefore, contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles as to the right to a participatory trial and procedural defects, thereby affecting the conclusion

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)