[2] Whether the defendant can apply for a participatory trial even if he did not submit a written confirmation of intention within seven days from the date of receiving a copy of the indictment (affirmative), and the completion date thereof (=not later than the first trial date)

[2] Article 8 of the Act on Citizen Participation in Criminal Trials requires a defendant to submit a document stating his/her intention as to whether he/she wants a participatory trial within seven days from the date on which he/she is served with a duplicate of the indictment (hereinafter referred to as "written confirmation of intention"), and if the defendant fails to submit a written confirmation of intention within that period, he/she shall not want a participatory trial, and if the preparatory hearing is terminated or the first trial date is open after that date, he/she shall not change the previous intention. In light of the purport of the above provision, it is difficult to deem that the defendant is unable to file a participatory trial if he/she fails to submit a written confirmation of intention within seven days from the date on which he/she is served with a duplicate of the indictment, it is reasonable to deem that the defendant may file a participatory trial until the first trial date

1. According to the Act on Citizen Participation in Criminal Trials (hereinafter “Act”), a court of first instance does not need to make a separate decision to commence a participatory trial in proceeding a case subject to a participatory trial with Defendant’s will, and if an objection is raised and the court of first instance decides to proceed to a participatory trial, it constitutes a decision on litigation procedures prior to the judgment, and there is no provision allowing an immediate appeal against such decision (Article 403 of the Criminal Procedure Act). Thus, no appeal may be filed against the above decision (Article 403 of the Criminal Procedure

Therefore, the appeal against the decision of the court of the first instance to proceed to a participatory trial shall be dismissed by the court which made the above decision because the appeal violates the legal method (Article 407(1) of the Criminal Procedure Act). If the court which made the above decision did not dismiss the appeal, the court of appeal shall dismiss the appeal by decision (Article 413 of the Criminal Procedure Act).

In the same purport, the dismissal of the prosecutor's appeal against the decision of the court of first instance that the court below decided to proceed as a participatory trial is justifiable, and there is no violation of the Constitution, law, order, or rule that affected the trial.

2. Meanwhile, the Act requires a defendant to submit a document stating his/her intention to whether he/she wants a participatory trial (hereinafter “written confirmation”) within seven days from the date on which he/she is served with a duplicate of the indictment (Article 8(2) of the Act). If the defendant fails to submit his/her written confirmation within that period, he/she shall be deemed not to have want a participatory trial (Article 8(3) of the Act). Article 8(4) of the Act provides that a defendant shall not change his/her previous intention after the preparatory hearing is closed or the first trial date is open (Article 8(

The issue of a participatory trial is that any person has the right to a participatory trial as prescribed by the Act (Article 1 of the Act). However, considering the initial burden of the participatory trial (Article 3 of the Act), a defendant has the right to a participatory trial in principle. When a defendant does not want a participatory trial or does not proceed with a participatory trial in accordance with Article 9(1) of the Act (Article 5(1), (2) of the Act). This provision provides that an immediate appeal may be filed against a decision to exclude a participatory trial (Article 9(3) of the Act). If a defendant does not have a right to a participatory trial until the date of preparatory hearing is closed, it can be seen that there is no possibility that the defendant would not have an objection to the judgment of the court to proceed with the participatory trial, and if the defendant does not have a right to a participatory trial without a written confirmation of his/her desire to submit the written confirmation of his/her desire to do so, it can be considered that it would be difficult for the court to promptly amend the above provision to determine whether the defendant's desire to have a participatory trial.

In light of the above legal principles, even if the defendant applied for a participatory trial after seven days from the date on which he was served with a duplicate of the indictment in this case, the decision of the court of first instance that the court of first instance decided to proceed as a participatory trial after confirming the defendant's intention is justifiable and there is no violation of law by misunderstanding the legal principles

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

Justices Ahn Dai-hee (Presiding Justice)