[1] The elements of Article 61 (1) of the Court Organization Act, which provides for detention or imposition of a fine for negligence against a person who obstructs the trial of the court or significantly damages the prestige of the trial

[2] The case holding that a defense counsel's defense counsel's response to an inappropriate attitude regarding the legitimate exercise of the presiding judge's right to direction a lawsuit does not constitute the elements of a judgment imposing a fine for negligence or confinement, on the grounds that it cannot be deemed that the act of defense counsel's response to an inappropriate attitude has

[1] The act of interference with the trial prescribed by Article 61 (1) of the Court Organization Act or significantly damaging the prestige of the trial does not require that the act may be a purpose of interfering with the trial or damaging the prestige of the trial. Even in the case where the party directly involved in the act is a prosecutor, defense counsel or witness who is not a court, the act may be evaluated as either interfering with the trial of the court or damaging the prestige of the trial according to specific circumstances, and the subject of the act shall include not only the general spectator, but also the defendant

[2] The case holding that the restriction of pleading against the leading question which is overlapping and unreasonable by the presiding judge is within the scope of the right to command the appropriate lawsuit of the presiding judge, and it cannot be deemed that the defense counsel infringed upon the fundamental rights of the defense counsel, such as the right to pleading, etc., since it is within the scope of the right to command the lawsuit of the presiding judge, but where the defense counsel gives improper answers to the legitimate exercise of the presiding judge's right to command the lawsuit, it may be deemed as an act damaging the prestige of the trial according to the specific circumstances, but it cannot be deemed as such act to the extent that it interferes with the trial of the court prescribed in Article 61

[1] Article 61 (1) of the Court Organization Act / [2] Article 61 (1) of the Court Organization Act, Article 279, Article 281 (2), and Article 299 of the Criminal Procedure Act

Offenders

Offenders

Attorneys Seo-ho et al., Counsel for the defendant

Seoul District Court Order 2003No187 dated May 22, 2003

The original decision shall be revoked.

No offender shall be punished.

1. Summary of grounds for appeal;

First, in the court of Seoul District Court case 2003Kadan335, the appellant did not have any act interfering with the trial of the court or significantly damaging the prestige of the court due to acts such as ordering the order maintenance by the presiding judge or verbal abuse or disturbance, etc. However, although the presiding judge at the time did not allow the appellant to omit the examination or to make a bad speech, it is merely a recommendation that restricts the appellant's right of defense. Rather, the presiding judge's right of defense is restricted in the cross-examination during which the leading question is allowed under the rules on criminal procedure, not within the scope of the right of legitimate jurisdiction of the court, but rather within the scope of the presiding judge's right of defense, and the decision ordering the appellant to detain the criminal counsel does not meet the legal requirements. Second, the decision ordering the detention is unconstitutional, which infringes upon the right to receive a legitimate trial guaranteed under the Constitution and the right to receive the assistance of the counsel. Third, the court of original judgment did not notify the appellant of the contents of the offense and did not notify the court of appeal period and appeal.

2. Judgment on the grounds of appeal

A. Summary of the violation recognized by the court below

The offender is a defense counsel for the fraud case of Seoul District Court 2003 Godan335, and in examining the witness safafafafafafafafafafabababababababababababa, from May 22, 2003 to 12:00 of the same day, the date of the trial of the above case;

(1) As to the question of whether the defendant refused to accept advertisements any longer or not, although the defendant refused to do so, the witness and the transfer of the witness intentionally asked the defendant to do business operation?" However, since the defendant and the transfer of the witness do not cause any harm to the defendant, there is only a fact that the defendant asked the witness to answer the contents of the examination." Even though the witness has already testified to the effect that the defendant's explanation or request to the effect that there was no fact that the defendant's explanation or request to do so, the original examination under Paragraph 44 of the next paragraph, which is the right of the witness, was referred to as "I would not obtain any advertisement?" However, in the actual examination, the witness's explanation of the above paragraph 4 and "I would not get any harm to the witness," and the witness's explanation that the witness's explanation or request to the effect that the defendant would not have any harm the witness's original contents of the examination," the witness's explanation that the witness's explanation and request to keep the witness's explanation that the witness did not have been rejected.

(2) 이어 같은 신문사항 제47항의 "그러나 검찰에서는 그 부분에 무혐의처분을 하였지요?"라는 질문에 대하여 위 증인이 "무혐의가 아니고 참고인 이송의 소재가 밝혀지지 않아서 기소중지가 된 것으로 알고 있다."고 답변하였는데, 이에 대하여 위 증인에 대한 신문이 끝난 뒤 재판장이 위반자에게 카드사용부분에 대하여 무혐의처분이 내려진 것이 맞느냐고 질문하자 분명히 "아직 무혐의처분이 내려지지는 않았다."라고 답변하였음에도, 다시 재판장이 "무혐의처분이 내려지지 않은 사실을 알고 있으면서도 무혐의처분이 내려진 것이 사실인데 증인은 그 사실을 알고 있느냐는 취지로 물어보는 것은 문제가 있는 것 아닙니까?"라고 묻자 위 진술을 번복하여 자신은 "무혐의처분이 내려졌는지 참고인 소재불명으로 기소중지처분이 내려졌는지 확인하여 보지 않아서 모른다."는 취지로 진술을 번복하자 재판장이 "방금 전에는 무혐의처분이 내려지지 않았다고 이야기하였다가 왜 확인해보지 않았다고 말을 바꿉니까?"라고 묻자 위반자는 다시 "확인하여 보지 않은 것이 맞고, 무혐의처분이 내려졌는지 기소중지처분이 내려졌는지 확인해 보지 않았다고 답변하였지 무혐의처분이 내려지지 않았다고 답변한 적이 없으며, 설사 변호인이 무혐의처분이 내려지지 않은 사실을 알고서도 무혐의처분이 내려진 사실을 아느냐고 신문하는 것은 변호인으로서의 변론권에 당연히 속하는 것이므로 그에 대하여 재판장이 개입하여 신문을 제한하는 것은 변호인의 변론권에 대한 침해행위인 만큼 그런 재판장의 재판태도에 대하여 상당히 섭섭하게 생각한다."라고 답변함으로써(이하 '제2위반사실'이라 한다), 재판장의 다음 사건들에 대한 재판진행을 방해하고 법원의 위신을 현저히 훼손하였다.

B. The judgment of the court below

The court below held that the above violation by a appellant constitutes a case that obstructs the trial of the court or significantly damages the prestige of the trial, and determined that the appellant shall be placed under detention 10 days by applying Article 61(1) of the Court Organization Act.

(c) Purport of Article 61(1) of the Court Organization Act;

Article 58 of the Court Organization Act provides, “The maintenance of order in the court shall be carried out by the presiding judge. ② The presiding judge may order a person who might endanger the dignity and order of the court to leave the court or to leave the court, or may issue any other order necessary for the maintenance of order in the court.” Article 59 of the same Act provides, “no person shall record, photograph, broadcast, etc. in the court without the permission of the presiding judge in the court.” Article 61(1) of the same Act provides, “the court shall, ex officio, do an act in violation of the order under Article 58(2) or Article 59, commit an act in violation of the order under Article 58(2) inside and outside the court, or interfere with the trial of the court or significantly damages the prestige of the court, by means of verbal abuse, disturbance, etc., by a ruling, punish the person detained for not more than 20

In order to maintain the order of the court and prevent and eliminate any act interfering with the trial, the power granted to the court is an inherent authority in the jurisdiction of the court, which is an inherent authority in the jurisdiction of the court, but it is comprehensively delegated to the presiding judge under the Court Organization Act in consideration of speediness and mobility of order in the court. Therefore, the presiding judge takes measures to prevent the defendant from leaving the court or to maintain order in the court under the title of Article 281(2) of the Criminal Procedure Act.

D. Whether the procedure of the decision of detention in this case is legitimate

Article 61(6) of the Court Organization Act provides that "the procedure of the trial under paragraph (1) and other necessary matters shall be determined by the Supreme Court Regulations," and accordingly, in order to determine the procedure of detention or the trial to impose a fine for negligence and other necessary matters, the Court Regulations (hereinafter referred to as the "Rules") enacted by the Supreme Court Regulations (hereinafter referred to as the "Rules").

According to the rules, when rendering a judgment of detention or imposing a fine for negligence, the court shall notify the offender of the details of the offense and provide him/her an opportunity to defend himself/herself, and, if deemed necessary, may ex officio examine the offender or witness or investigate the facts by other means (Article 6). When rendering a judgment, the court shall specify the substance of the offense and the applicable provisions of Acts and shall inform him/her of the period of objection and objection if the offender attends the meeting (Article 10), and the court shall be allowed to receive assistance from the attorney only when there is no risk of delay in the trial (Article 7).

On the other hand, according to the health care unit, the court of original judgment, and the written decision of the court of original judgment, the court of original judgment can sufficiently recognize the fact that the appellant made a decision in accordance with the above procedure as set forth in the rules and the court of original judgment sentenced the appellant to the detention 10 days (the written decision of original judgment does not include the phrase "inform the offender of the substance of the offense" and "assign him/her an opportunity to defend himself/herself," but according to the above protocol, it can be recognized that the court of original judgment conducted an examination of the contents of the offense of this case as to the public prosecutor in the public trial and in the public trial and in the public trial and in the public trial and in the public trial, the presiding judge tried at the time of the offense and provided him/her with an opportunity to defend himself/herself, and in light of the fact that the offender is a lawyer, it is reasonable to see that the summary of the

In addition, a trial on detention or a fine for negligence shall be held in principle on the date of the violation unless there is a special reason (Article 4 of the Rules). In this case, there is a concern for delay of a trial because it is necessary for an offender to undergo a separate procedure of appointment to receive a lawyer's assistance. In addition, in light of the fact that the offender is a lawyer, an attorney cannot be appointed as an assistant in the trial of this case, and therefore, there is no procedural error in the procedure. Thus, the appellant and the defense counsel's assertion that there is a procedural error in the decision of detention of this case is without merit.

E. Whether the detention decision of this case satisfies the substantive requirements

(1) Litigation direction and court police power

The right to command a lawsuit is a consolidated act of the court for the prompt and smooth progress of the trial. Article 279 of the Criminal Procedure Act provides that the presiding judge's right to command a lawsuit at the trial date shall be the presiding judge. However, the right to command a lawsuit at the trial date is not the right granted to the presiding judge only by law, but the inherent inherent authority inherent in the judicial power and the inherent inherent authority of the court. The presiding judge's right to command a lawsuit at the trial date is merely a delegation of the court's right to command a lawsuit at the trial date to the presiding judge in order to ensure prompt and appropriate direction of a lawsuit at the trial date. Therefore, the right to command a lawsuit is the inherent authority that can be exercised even if there is no express ground, and is a proper exercise of the right to command a lawsuit at the trial of a specific case, and therefore, it

In addition, as seen earlier, the statutory police power exercised by the presiding judge to maintain the legal order and prevent or eliminate the conduct of interfering with the trial belongs to the broad jurisdiction in that it is the operation and management function of the lawsuit held in essence by the court. However, the statutory police power is distinguishable from the jurisdiction of the lawsuit that has substantial relation to the deliberation of the lawsuit in that it is not directly related to the contents of the case in that it is an action incidental to the judicial police power.

Article 299 of the Criminal Procedure Act provides, “If a statement or examination of a person involved in the litigation is overlapping or unrelated to such case, the presiding judge may restrict such statement or examination to the extent that it does not infringe on the essential rights of the person involved in the litigation,” thereby allowing the presiding judge to restrict unnecessary pleadings. The presiding judge’s right to restrict pleadings is only a type of the right to command the litigation and does not arise pursuant to the provisions of the aforementioned Act. The person involved in the litigation, including the accused, is obligated to obey the direction of the lawsuit by the presiding judge or the court. With respect to a disposition by the presiding judge restricting the statement or examination of a person involved in the litigation, an objection may be filed only on the ground that such disposition is in violation of statutes (Article 304 of

(2) As to the part on violation of Article 1

According to the trial records, decisions and the written reasons for appeal by the appellant, etc. of this case, although the appellant had already testified to the effect that "the defendant refused to accept any more advertising orders, but the witness and the transfer of the defendant did not gain any advertising orders" as a defense counsel of the fraud case of Seoul District Court 2003Ma335, which is the victim of the above case, the appellant did not obtain any advertising orders or request the above witness to the effect that the above witness did not obtain or request any advertising orders, the following examination items are "I would not obtain any advertisement upon the request of the defendant to make an advertisement on the side of the softens and correction?" However, in the actual examination, the witness's explanation that "I would not intentionally refuse to receive advertising orders" and "I would like to keep the witness's answer to the questions that "I would no longer obtain any advertising orders," and the witness's explanation that I would like to keep the witness's answer to the questions by inserting the contents of the examination and answer to the witness's request."

The cross-examination is an examination conducted by the opposing party after the main examination, and its purpose is to eliminate the probative value of testimony by impeachmenting the credibility of the witness, as well as to point out the contradictions of the main examination and bring about the omissions favorable to the opposing party. However, in the cross-examination, a leading question may be conducted (Article 76(2) of the Regulation on Criminal Procedure), but if it is deemed that the method of leading question is unreasonable, the presiding judge may limit it (Article 76(3) of the Regulation on Criminal Procedure).

In addition, if the presiding judge deems it necessary, he/she may order the person who requested the examination of the witness to submit a document stating the matters of the examination (Article 66 of the Regulations on Criminal Procedure), but the current Criminal Procedure Act, which takes the teaching rule, does not only help the presiding judge's direction of the lawsuit and the officer's convenience in the preparation of the protocol of trial.

However, in principle, a leading question shall be permitted since the appellant was in the process of cross-examination against the witness who applied for by the prosecutor. Even if the witness submitted the cross-examination in advance, it is not necessarily required to be examined in accordance with the matters submitted. However, if the witness refuses to answer the question any longer, but the witness and the transfer of the witness are repeatedly examined by changing the phrases of the examination, and repeatedly examines the contents of the "whether the defendant was aware of the right to command the lawsuit," and even though the witness testified to the effect that the witness had not already received or asked the above questions, it is not reasonable by the method of examination to induce the defendant to continue to attend the examination upon the request of the witness and the transfer. Therefore, it is not appropriate for the presiding judge to restrict such questioning as overlapping or unreasonable acts of the appellant to have the right to command the lawsuit by the presiding judge, and it is not appropriate for the presiding judge to reverse the presiding judge's right to command the lawsuit and to order the defendant's defense counsel's right to attend the lawsuit and to order the lawsuit again.

(3) On the part on violation of Article 2

이 사건 재판조서 및 결정문, 항고인의 항고이유서 등에 의하면, 위 증인신문 도중 항고인은 증인에게 "그러나 검찰에서는 그 부분에 무혐의처분을 하였지요?"라는 질문하였고 위 증인이 "무혐의가 아니고 참고인 이송의 소재가 밝혀지지 않아서 기소중지가 된 것으로 알고 있다."고 답변하였는데, 이에 대하여 위 증인에 대한 신문이 끝난 뒤 재판장이 위반자에게 카드사용부분에 대하여 무혐의처분이 내려진 것이 맞느냐고 질문하자 분명히 "아직 무혐의처분이 내려지지는 않았다."라고 답변하였음에도, 다시 재판장이 "무혐의처분이 내려지지 않은 사실을 알고 있으면서도 무혐의처분이 내려진 것이 사실인데 증인은 그 사실을 알고 있느냐는 취지로 물어보는 것은 문제가 있는 것 아닙니까?"라고 묻자 위 진술을 번복하여 자신은 "무혐의처분이 내려졌는지 참고인 소재불명으로 기소중지처분이 내려졌는지 확인하여 보지 않아서 모른다."는 취지로 진술을 번복하자 재판장이 "방금 전에는 무혐의처분이 내려지지 않았다고 이야기하였다가 왜 확인해보지 않았다고 말을 바꿉니까?"라고 묻자 위반자는 다시 "확인하여 보지 않은 것이 맞고, 무혐의처분이 내려졌는지 기소중지처분이 내려졌는지 확인해 보지 않았다고 답변하였지 무혐의처분이 내려지지 않았다고 답변한 적이 없으며, 설사 변호인이 무혐의처분이 내려지지 않은 사실을 알고서도 무혐의처분이 내려진 사실을 아느냐고 신문하는 것은 변호인으로서의 변론권에 당연히 속하는 것이므로 그에 대하여 재판장이 개입하여 신문을 제한하는 것은 변호인의 변론권에 대한 침해행위인 만큼 그런 재판장의 재판태도에 대하여 상당히 섭섭하게 생각한다."라고 답변한 사실을 인정할 수 있다.

The presiding judge may, in order to clarify the litigation relations, request the public prosecutor, the accused or the defense counsel to interrogate or prove the matters in fact and legal matters (Article 141 of the Regulations on Criminal Procedure). In order to clarify the contents of the case, the term “defensive” refers to questioning the parties in fact and legal matters, giving them an opportunity to supplement or correct their statements or arguments, and urging them to provide evidence. In addition, the contents of the right to command the litigation are the contents of the right to command the litigation. In addition, if the examination is deemed unreasonable even if it is an examination related to the defendant case in question, the examination may be restricted if the method of examination is illegal or unreasonable, for example, if the method of examination of witness is an leading question, and the method of examination is a coercive or insulting case.

On the other hand, in the above case, the appellant was examined to induce the prosecutor's office to respond to the facts that he knew of the fact that the defendant's credit card use was not subject to the non-guilty disposition or that at least was made a non-suspected disposition, but the prosecutor did not confirm that the prosecution suspended the prosecution, and even after the examination of the above witness was completed, the presiding judge may seek an explanation of the actual facts of the counsel in order to clarify the litigation relations on the day of the trial before the conclusion of the pleading. Thus, the presiding judge's inquiry of the above presiding judge is that the appellant may seek an explanation of the fact in order to clarify the litigation relations. Thus, although the presiding judge's right to direct the trial was exercised, the appellant's answer to "the restriction of the examination by the presiding judge is considered to significantly interfere with the trial attitude of the presiding judge, as it is an infringement of the defense counsel's right to direct the trial." It cannot be said that the presiding judge's right to direct the trial, such as the above violation of the defense counsel's right.

(4) Whether it interferes with the hearing or significantly damages the prestige of the trial

As seen above, the Appellant’s violation of this case is inappropriate response to the exercise of the presiding judge’s legitimate right to order a lawsuit, and therefore, it cannot be deemed that the appellant infringed the right to pleadings held in the position of counsel. However, it is a matter whether such Appellant’s act interferes with the court’s trial or seriously damages the prestige of the court’s trial, namely, whether it is subject to the exercise of the power

As seen above, the court police authority should be judged jointly in light of the purpose of the maintenance of legal order, since the purpose of the jurisdiction of the court is to avoid being obstructed by the trial or significantly damaged the prestige of the trial.

An act of interference with trial or considerably damaging the prestige of a trial prescribed in Article 61(1) of the Court Organization Act does not require that the act may be a purpose of interference with trial or damage to the prestige of a trial, and even in a case where the act is a prosecutor, defense counsel or witness who is not the other party to the trial, it may be evaluated as an act of interference with trial of a court or damaging the prestige of a trial according to specific circumstances. In addition, the subject of the act of violation includes not only general audience but also a defendant

As seen above, the appellant answers to the inappropriate attitude regarding the exercise of the presiding judge's right to order a legitimate lawsuit as seen above, and considering the attitude of the presiding judge's trial as to the attitude of the presiding judge's defense right to the extent that it is an infringement on the defense counsel's right to pleading, it constitutes an act of damaging the prestige of the trial according to the specific circumstances. However, in the case of the violation of Article 2, it is not limited by the presiding judge in the course of interrogation or statement, but by the presiding judge's questioning the defense counsel about the actual facts in order to clarify the contents of the case actively after the examination of the witness, and asking him/her about the inappropriate attitude in the course of requesting his/her answer. Since it is difficult to see that the appellant, such as the defense counsel, etc., has a duty to obey the presiding judge's order of lawsuit, but the formation of the judge's conviction should be based on the hearing of the unlawful presiding judge's right to ask for a fine for negligence, etc., and thus, it is difficult to see that the court's opinion and defense of this case seriously requires a fair trial.

F. Sub-committee

If the dignity and order of the court are not secured, the authority of the court and trust to the judicial branch can not be secured, and in this sense, the presiding judge's right to direct the litigation and the judicial police power should be guaranteed.

The Appellant’s violation of this case is an inappropriate response to the presiding judge’s right to command the lawsuit, which is obligated to obey, and according to specific circumstances, it may be evaluated as an act that damages the prestige of the trial. However, it cannot be said that it obstructs the deliberation of the court under Article 61(1) of the Court Organization Act or significantly damages the prestige of the trial, and thus, it does not constitute the requirements of the judgment to punish the appellant by confinement or fine for negligence.

3. Conclusion

Therefore, without the need to determine the remaining grounds for appeal by the appellant and the defense counsel, the appeal in this case is with merit, so the original decision shall be revoked under Article 61(6) of the Court Organization Act and Article 15 of the Rules, and the decision shall be made again as follows:

The summary of the offense against the offender is as described in paragraphs (e) (2) and (3) of Article 2, and it is not reasonable to punish the offender or to impose a fine for negligence. Therefore, it is determined as per the disposition.

Judges Choi Jung-Jon (Presiding Judge) Kim Jong-Jon Constitution