The first instance court confirmed the defendants' intent not to want a participatory trial on the first trial date, but did not give sufficient guidance on the participatory trial procedure, such as issuing a guide for a participatory trial translated into Russian language to the defendants who are foreigners using Russian language without using Korean language at the time, or delivering it in advance, and it cannot be deemed that the procedure for the participatory trial was lawfully conducted, and therefore, it is unlawful as a serious infringement on the defendants' right to a participatory trial, and procedural acts conducted in illegal proceedings are also null and void. Furthermore, since the defendants clearly expressed their intent to want a participatory trial at the appellate court, it cannot be deemed that the above procedural defect in the trial procedure of the court below is cured, and the court below erred in the misapprehension of laws and regulations, which affected the conclusion of the judgment.

Each sentence (Defendant 1: 12 years of imprisonment, Defendant 2: 10 months of suspended sentence, Defendant 3: 1 year of suspended sentence, and Defendant 2: 2 years of suspended sentence) imposed on the Defendants is too unreasonable.

2. Ex officio determination

We examine the Defendants’ grounds for appeal ex officio prior to their judgment.

A. Relevant legal principles

A participatory trial implemented pursuant to the Act on Citizen Participation in Criminal Trials (hereinafter referred to as the "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 law (Article 3(1) of the Act). As such, not only the Republic of Korea but also foreigners have the right to a participatory trial. A case eligible for a participatory trial shall proceed according to the participatory trial procedure in principle. However, a participatory trial shall not be held exceptionally only where a defendant does not want a participatory trial or a court makes a decision to exclude due to a reason under any of subparagraphs of Article 9(1) of the Act (Article 5(1) and

As such, the issue of whether a participatory trial is held shall be decided first by Defendant’s will. If a case subject to a participatory trial is indicted, the court must confirm Defendant’s desire to a participatory trial in writing, etc. (Article 8(1) of the Act). To this end, Defendant or counsel must be served with a copy of the indictment, including the procedure for a participatory trial, submission of documents pursuant to Article 8(2) of the Act, restriction on change of intention pursuant to Article 8(4) of the Act, and other directions (Article 3(1) of the Rules on Citizen Participation in Criminal Trials). In addition, if Defendant wants to a participatory trial after giving a considerable period of time to Defendant, the court must check Defendant’s desire to a participatory trial. If the court has conducted a participatory trial in ordinary procedure without giving Defendant sufficient guidance and giving considerable period of time to Defendant, it constitutes a serious violation of Defendant’s right to a participatory trial, and the procedure is unlawful and such unlawful procedural acts in the trial procedure should also be deemed null and void.

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 participate in a participatory trial. Thus, even if the first instance court proceeds in a ordinary trial without confirming Defendant’s desire to participate in a participatory trial lawfully, it is reasonable to view that Defendant’s intention not to participate in a participatory trial at the appellate trial clearly expresses Defendant’s intention not to be involved in the first instance trial’s procedural illegality as a whole, and that the first instance trial procedure is legitimate as a whole. However, in light of the purport of the participatory trial system and the relevant provisions that guarantee Defendant’s right to participate in a participatory trial, in order to deem that the defect in the first instance trial procedure infringing on the above right is cured, Article 8(1) of the Act and Article 3(1) of the Rules on Citizen participatory Trial should be provided in advance to Defendant with sufficient guidance on the participatory trial procedure and considerable time to consider whether Defendant wishes to participate in the trial (see Supreme Court Decision 2012Do12588, Apr. 26, 201208).

B. Facts of recognition

According to the records of this case, the following facts can be acknowledged.

(1) Defendants 1 and 2 shall use the Russian language as both the nationality of each Russia, and Defendant 3 shall not use the Russian language at all, and shall not use Korean language.

② Defendants were indicted on December 12, 2019, and the instant indictment was accompanied by a report of investigation regarding the language used by the Defendants.

③ The lower court served, on December 16, 2019, Defendant 1, Defendant 2, Defendant 2, and Defendant 3, respectively, a copy of the indictment written in the Korean language, a guide for the participatory trial, and a written confirmation of intention on the participatory trial. On December 16, 2019, Defendant 2, and Defendant 2, January 2, 2020, respectively. Then, the lower court served Defendant 1, Defendant 2, and Defendant 3, respectively, a translation of the written indictment on January 23, 2020, respectively. However, the lower court did not serve the Defendants on the participatory trial guide and written confirmation of intention.

④ On January 31, 2020, the Defendants made a statement that they do not want a participatory trial to ask questions of the presiding judge who asked his/her intention to a participatory trial during the first trial of the lower court, which was initiated with the assistance of counsel and interpreter.

⑤ Accordingly, the lower court, while proceeding with ordinary trial proceedings, conducted the examination of evidence on the date of the first trial. On April 21, 2020, opened the second trial date and renewed the trial proceedings. On April 28, 2020, opening the third trial date and closed the pleadings, closed the pleadings, and sentenced the judgment on the fourth trial date on May 26, 2020. The Defendants appealed.

(6) On July 23, 2020, the court proceeded with the first trial date with the interpreter’s participation. The presiding judge notified the Defendants of “The Defendants sent the guide on the participatory trial to the Defendants at the original trial, but the translation was not served, and the progress of the trial without the delivery of the Russian translation is deemed defective in the procedure. Therefore, the Defendant’s explanation on the participatory trial and the confirmation of intention in the Korean language should be submitted to the Defendant, and then, after being sufficiently recorded with his counsel, expressed his intention to receive the participatory trial by the next day.”

7) On July 29, 2020, this Court served a translation of the guide for a participatory trial and a written confirmation of intention on July 29, 2020 to Defendant 1 and Defendant 3, and Defendant 2 on August 10, 2020 to Defendant 2, respectively.

① On August 20, 2010, Defendant 1 and his state appointed defense counsel, Defendant 2, Defendant 3, and their defense counsel stated that they want to proceed the instant case to a participatory trial.

C. Determination

On January 31, 2020, the lower court confirmed the Defendants’ intention that the instant case does not want a participatory trial.

However, the court below did not give sufficient guidance to the defendants who are foreigners using Russian language without using Korean language at that time on the participatory trial procedure, such as issuing a guide for the participatory trial in Russian language or delivering it in advance, and it did not set a considerable period of time to the participatory trial procedure. Therefore, it cannot be deemed that the procedure for confirming the intention of the participatory trial was lawful.

Nevertheless, the lower court’s ordinary procedure conducted the instant trial. As such, it is unlawful as a serious infringement on the Defendants’ right to a participatory trial, and the litigation conducted in an unlawful trial procedure shall also be deemed null and void. Furthermore, the defect in the above litigation procedure constitutes grounds for ex officio examination.

Furthermore, the Defendants clearly expressed their desire to a participatory trial on the instant case in the court, and thus, the above defect in the trial procedure cannot be deemed to have been cured. Ultimately, the lower court erred by misapprehending the legal principles, thereby affecting the conclusion of the judgment.

3. Conclusion

Therefore, the judgment of the court below is reversed under Article 364 (2) of the Criminal Procedure Act without examining the defendants' grounds for appeal, and since the participatory trial is under the jurisdiction of the court of first instance, it is subject to Article 366 of the Criminal Procedure Act, and the case is remanded to Incheon District Court Panel Division, which is the court of first instance, by applying Article 36

Judges Yoon Jin-heon (Presiding Judge)