The judgment below is reversed, and the case is remanded to Busan High Court.

1. The decision shall be made ex officio;

(1) The citizen participatory trial implemented under 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 citizen participatory trial under the conditions as prescribed by the Act (Article 3(1) of the Act). In principle, a case subject to citizen participatory trial under the Act shall proceed according to the citizen participatory trial procedure. However, if the defendant does not want participatory trial or the court makes a decision of exclusion on the grounds under each subparagraph of Article 9(1) of the Act, the citizen participatory trial shall not be held exceptionally (Articles 5(1) and 5(2) of the Act). If a case subject to citizen participatory trial is instituted, the court must first confirm the defendant's desire to participatory trial by means of document, etc., whether the defendant wishes to do so, and if there is a prosecution, the court shall also reverse the citizen participatory trial procedure's right to the citizen participatory trial, submission of a copy of the public participatory trial or his defense counsel's opinion under Article 8(1).

In addition, the defect in the litigation procedure falls under the ground of ex officio examination, and the court of original trial is the defendant's appeal.