However, in light of the purpose of introducing a participatory trial or the defendant's right to a participatory trial, etc., in order for the defendant to make a decision to exclude a participatory trial on the grounds of Article 9 (1) 3 of the Act on Citizen Participation in Criminal Trials in a case that the defendant wants a participatory trial, it shall be carefully determined in consideration of various circumstances, such as sexual crime victims or legal representatives, the relationship between the defendant and the victim, the relationship between the victim and the victim, the victim's age and mental state, and the case where a participatory trial is conducted, even if using the system provided for protection of the victim in the Criminal Procedure Act, the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, and the Act on the Protection of Children and Juveniles against Sexual Abuse, it is insufficient to

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). Since anyone has the right to a participatory trial as prescribed by law, a case eligible for a participatory trial under the law and rules is in principle conducted according to the participatory trial procedure (Article 5(1) of the Act): Provided, That where a defendant does not want a participatory trial or a court decides to exclude a participatory trial on the grounds under any subparagraph of Article 9(1) of the Act, it shall not be a participatory trial exceptionally (Article 5(2) of the Act).

Meanwhile, if a victim of a crime under Article 2 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (hereinafter “victim of a sexual crime”) or his/her legal representative does not want a participatory trial, a court may decide not to proceed to a participatory trial from the prosecution to the day after the preparatory hearing is closed (Article 9(1)3 of the Act). This means that a court may decide not to proceed to a participatory trial in its discretion, taking into account that a sex crime victim’s sexual crime or his/her legal representative does not want a participatory trial in the course of a participatory trial, taking into account that additional damage, such as impairing the character or reputation of the victim, infringing on privacy, infringing on sexual secrets, sexual humiliation

However, in light of the purpose of introducing a participatory trial or the defendant's right to a participatory trial, in order for the defendant to make a decision to exclude a participatory trial on the basis of Article 9 (1) 3 of the Act in a case intending a participatory trial, the decision should be made carefully in consideration of various circumstances, such as what the sexual crime victim or legal representative does not want a participatory trial, the relationship between the defendant and the victim, the relationship between the victim and the victim, the victim's age and mental condition, and the use of the system provided for protection of the victim in the Criminal Procedure Act, the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, and the Act on the Protection of Children and Juveniles against Sexual Abuse, etc.

2. The court below maintained the decision of the court of first instance that excluded the participatory trial on the ground that the legal representative of the victim clearly expresses his/her intention not to want a participatory trial, that the victim is a intellectual disabled person under 14 years of age, that there may be additional damage, such as the victim's personality or honor impairment, privacy infringement, sexual humiliation, and fear of fear, and that it is inappropriate to proceed the defendant case as a participatory trial in light of the characteristics of the participatory trial, the procedure and method for the deliberation expected to be a participatory trial.

Examining the aforementioned legal principles and records, the lower court’s decision is justifiable. In so doing, it did not err by violating the Constitution, Acts, orders, or rules that affected the trial.

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

Justices Lee Sang-hoon (Presiding Justice)