[1] In accordance with Article 42(2) of the Act on Citizen Participation in Criminal Trials and Article 35(1) of the Rule on Citizen Participation in Criminal Trials, whether the presiding judge’s first explanation to jurors and alternate jurors is included in the facts charged that the prosecutor did not yet read by the indictment (negative in principle)

[2] In accordance with Article 46(1) of the Act on Citizen Participation in Criminal Trials, and Article 37(1) of the Rule on Citizen Participation in Criminal Trials, whether it is unlawful for a presiding judge to refuse to explain the matters for which he/she is obligated to explain to the jury (affirmative in principle)

[1] Article 42(2) of the Act on Citizen Participation in Criminal Trials provides that “The presiding judge shall explain to jurors and alternate jurors the authority and duties of jurors and alternate jurors, trial procedures, and other matters necessary to perform his/her duties smoothly.” The presiding judge’s first explanation is made before notifying the defendant of his/her right to refuse to make statements in accordance with Article 35(1) of the Rules on Citizen Participation in Criminal Trials in order to take into account jurors and alternate jurors who are not familiar with trial procedures, and thus, the first explanation by the presiding judge is made before notifying the defendant of his/her right to refuse to make statements in accordance with Article 35(1) of the Rules on Citizen Participation in Criminal Trials. In principle, the subject of the explanation includes facts charged

[2] Article 46(1) of the Act on Citizen Participation in Criminal Trials (hereinafter “Act”) provides that “The presiding judge shall explain to jurors, after the conclusion of pleadings, the summary of facts charged, applicable provisions of Acts, summary of arguments by the accused and the defense counsel, admissibility of evidence, and other reasonable matters. In such cases, if necessary, he/she may explain the summary of evidence.” Furthermore, Article 37(1) of the Rules on Citizen Participation in Criminal Trials (hereinafter “Rules”) provides that “other reasonable matters” include the presumption of innocence, the principle of trial by evidence, and the principle of free evaluation of evidence. The final explanation by the presiding judge is in charge of guiding and assisting jurors in the proper verdict so that jurors may have a significant impact on jury’s verdict, and thus, failure of the presiding judge to explain matters for which he/she is obliged to explain pursuant to Article 46(1) of the Act and Article 37(1) of the Rules is unlawful measures in principle.

However, most of the above final explanation items are naturally present in the court where jurors participated in the trial process, but the purport of imposing the final explanation obligation to the presiding judge is to ensure easy and brief reorganization of the case. Article 37(2) of the Rules provides that "the prosecutor, the accused or the defense counsel may request in writing the presiding judge to include the explanation of paragraph (1) by specifying legal matters necessary for the explanation in connection with the case in question." Article 46(2) proviso provides that "If the final explanation of the presiding judge is insufficient, the judge may hear the opinions of the judge participating in the trial at the request of a majority of jurors." Article 46(3) of the Rules provides that "If there is no disagreement between jurors and those who have participated in the trial before the final verdict and those who have participated in the trial, the presiding judge shall hear opinions of the judge before the final verdict, and it is difficult for the presiding judge to understand that the final explanation and explanation are not sufficient or it is difficult for him/her to explain the opinions of the judge in advance of the final verdict." Thus, even if the final explanation is insufficient by the presiding judge's lack of the final explanation, the presiding judge to explain.

[1] Article 42(2) of the Act on Citizen Participation in Criminal Trials; Article 35(1) of the Rule on Citizen Participation in Criminal Trials / [2] Article 46(1), (2), and (3) of the Act on Citizen Participation in Criminal Trials; Article 37(1) and (2) of the Rule on Citizen Participation in Criminal Trials

Defendant

Prosecutor

Attorney Kim Yong-hoon

Seoul High Court Decision 2014No238 decided June 19, 2014

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

The grounds of appeal are examined.

1. A. Article 42(2) of the Act on Citizen Participation in Criminal Trials (hereinafter “Act”) provides that “The presiding judge shall explain to jurors and alternate jurors the authority and duties of jurors and alternate jurors, trial procedures, and other matters necessary to perform his/her duties smoothly,” and provides the presiding judge’s initial duty of explanation on the trial date. In order to take into account jurors and alternate jurors who are familiar with trial procedures, the initial explanation by the presiding judge is made before notifying the defendant of his/her right to refuse to make statements pursuant to Article 35(1) of the Rules on Citizen Participation in Criminal Trials (hereinafter “Rules”), and in principle, the explanation does not include facts charged that the prosecutor has not yet read in accordance with the indictment.

B. Meanwhile, Article 46(1) of the Act provides that "after the conclusion of pleadings, the presiding judge shall explain to jurors the summary of facts charged, applicable provisions of law, summary of the defendant's assertion, admissibility of evidence, and other significant matters. In such cases, if necessary, he/she may explain the gist of evidence." Furthermore, Article 37(1) of the Rule provides that "other important matters" includes the principle of presumption of innocence, the principle of trial of evidence, and the principle of free evaluation of evidence. The final explanation by the presiding judge is in charge of guiding and supporting jurors to make them available for a correct verdict, and such final explanation by the presiding judge has a significant impact on the jury's verdict. Therefore, failure of the presiding judge to explain matters that he/she has the duty to explain pursuant to Article 46(1) of the Act and Article 37(1) of the Rule is illegal measures in principle.

① However, most of the above final explanation items are naturally present in the court where jurors participate in the trial, but the purport of imposing the final explanation obligation to the presiding judge is to ensure easy and brief reorganization of the case. ② Article 37(2) of the Rules provides that “the prosecutor, the accused or the defense counsel may request in writing the presiding judge to include the explanation of paragraph (1) by specifying the legal matters necessary for the explanation in connection with the case.” Article 46(2) proviso provides that “If the final explanation of the presiding judge is insufficient, he/she may hear the opinions of the judge who participated in the trial at the request of a majority of jurors.” Article 46(3) of the Rules provides that “ Jurors shall hear the opinions of the presiding judge who already participated in the trial before the final verdict if there is any disagreement between the jury and the final verdict and the final verdict that it is difficult for the presiding judge to explain the facts charged, or if it is difficult for him/her to explain the final judgement without reasonable understanding of the final jury's opinion, it is difficult for him/her to understand that part of the final explanation in the trial is insufficient or it.”

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. On May 22, 2013, the first instance court proceeded with the preparatory hearing to arrange issues and evidence related to the instant case in which a public prosecution was instituted with the following purport: “The Defendant drinking alcohol at the main point of May 22, 2013, and served 5cm in depth with the 5cm part of the victim’s clothes in order to kill the victim at the end of the victim’s happiness and the end of the trial.” (hereinafter “instant primary facts charged”).

B. At the above preparatory hearing, the Defendant alleged that he did not have a knife the victim himself, and the presiding judge of the first instance court arranged the issues of the case into “where the Defendant left his knife to the non-indicted snife at the time,” and “where the victim became knife in the knife.”

C. On November 25, 2013, after the date of preparatory hearing, the prosecutor filed an application for changes in indictment to add charges of violation of the Punishment of Violences, etc. Act (hereinafter “instant preliminary charges”) with the effect that the Defendant inflicted an injury on the victim with excessive roads.

D. On December 5, 2013, the first trial date, around 11:15, 2013, the presiding judge explained to jurors and alternate jurors about the authority and duties of jurors and alternate jurors, trial procedures, and other matters necessary to perform their duties. After permitting the prosecutor's application for modification of the indictment, the prosecutor stated that the prosecutor read the main facts of the instant case and the summary of the ancillary facts of the instant indictment and the application for modification of the indictment, the name of the offense, and the applicable provisions of the Act, and the defense counsel stated that there was no fact that the Defendant had a victim knife, the primary facts of the instant case and the ancillary facts of the instant indictment are different from the criminal intent.

E. In addition, the presiding judge of the first instance court stated that "I would like to simply explain the main issues of this case on the basis of prosecutor, defense counsel and defendant's statement prior to opening a principal trial, and stated the summary of the primary facts charged of this case." The issues related to the determination of guilty or not guilty are changed to the purport that "I would like to take the knife at the time, although the defendant had knife, because I did not use the knife, and there was no fact that I would have knife the victim in the knife because I had knife the knife." The issue of this case is whether there was a fact that the defendant was knife by the victim in the knife, and the victim had the knife in the knife."

F. In each of the procedures such as the examination of a witness conducted on the same day and the following day, the examination of the accused, and the statement of final opinion, etc., a public trial was conducted with a focus on the issue of whether the accused was admitted to have a knife the victim. As to the contents of the ancillary facts of the instant case, sentencing conditions, etc., separate from the primary facts charged of the instant case, there was no independent public trial and a trial. The presiding judge of the first instance court responded that the defense counsel did not raise any objection to the outcome of the trial that had been pending before the first instance court trial after the lapse of the p.m. trial, but the defense counsel did not appear.

G. On December 6, 2013, the presiding judge of the first instance court closed arguments on the date of the second instance trial commenced on or before December 10:00, and explains the final explanation to jurors in the court, “I would like to simply sum up the contents of the trials so far, and explain the legal principles applicable to this case. However, at the time of the closing of arguments, I would like to give sufficient explanation about the arguments and evidence relations between the prosecutor and defense counsel so that I would not overlap. I would like to omit the gist of the facts charged. I explained the jury statement distributed to jurors in accordance with the jury manual. I explained only about the facts charged and the surrounding facts charged in this case under the name of the judge of the first instance court. After that, the presiding judge explained in detail the rules of evidence law, deliberation procedure, etc. to be observed at the time of deliberation, and explain the contents of the jury's verdict and its comprehensive statement about the facts charged in this case.” In addition, I would have to explain that it is necessary to hear the victim's opinions and opinions in the first instance trial court.”

H. The jury, by a majority of five persons guilty and four persons not guilty, led to a verdict of conviction on the primary facts of the instant case. The jury expressed two years and six months (four persons), three years (four persons), and four years (one person) of imprisonment with prison labor for the primary facts of the instant case. The first instance court found the Defendant guilty of the primary facts of the instant case and sentenced a three-year imprisonment with prison labor.

I. As to the measures taken by the presiding judge of the first instance court who did not explain the gist of the instant conjunctive facts at the time of the final explanation, the Defendant and the defense counsel did not raise an objection to the presiding judge of the first instance court at the time or request the final explanation to include a summary of the instant conjunctive facts in the instant preliminary facts, and did not dispute at all the lower court’s decision.

3. A. Examining the above facts in light of the legal principles as seen earlier, the presiding judge of the first instance court did not err by failing to explain the preliminary facts charged in this case at the time of the initial explanation by violating the relevant statutes by violating the presiding judge’s first duty to explain.

B. In addition, the presiding judge of the first instance court, after the first explanation and the statement of both the prosecutor and the defendant, entered the conjunctive charges into the facts charged and explained only the primary facts charged to the juror and alternate juror and the issue of the case in a knife with the victim. However, the presiding judge of the first instance court's presiding judge's explanation by organizing the issues of the facts charged or the case as above is merely to help the jury and alternate juror understand the issues, and even if part of the facts charged was omitted from such explanation, it cannot be deemed that the court excluded the part of the facts charged. ② In this case, the "whether the defendant was in a knife with the victim, whether the victim was in a knife with the non-indicted at the time, and how the victim was in a knife with the non-indicted at the time," the presiding judge cannot be viewed as a limited issue to the main facts charged, and the basic facts are the issues of the ancillary facts of this case after all the prosecutor and defense counsel, and cannot be evaluated as unlawful in the facts charged.

C. However, as shown in the above facts, the presiding judge's measure of the first instance court, which omitted an explanation of the summary of the instant conjunctive charges from the final explanation, shall be deemed to be erroneous in failing to properly perform the duty of final explanation under Article 46 (1) of the Act.

However, various circumstances revealed in the above legal principles, namely, ① the summary of the facts charged in this case and differences between the primary facts charged and the primary facts charged, etc. are already revealed in the public trial process of this case with the prosecutor’s statement, etc. ② The facts charged in this case differs from intention in relation to the primary facts charged, and particularly falls under the reduction of facts without legal issues, which are different from the primary facts charged, and there are no complicated issues. Although there is no explanation from the presiding judge of the first instance trial, jurors could understand the facts charged in the public trial process. ③ The defendant and defense counsel did not request the presiding judge of the first instance trial to include the final explanation of the facts charged or raise an objection against the omission of the explanation. ④ The presiding judge of the first instance trial explained that it is possible to ask questions if there is any need to confirm the final jury in the public trial process of deliberation, ④ In particular, it is difficult to consider that the jury's right to the final verdict and the primary facts charged was infringed by the judge's opportunity to hear the opinions of the defendant in this case as a whole.

4. Nevertheless, the court below reversed the judgment of the first instance court and sentenced the case to the court of first instance on the grounds that the first instance court's measures and the second instance court's trial proceedings conducted by these series of measures were accepted by the defendant's application and submitted to the participatory trial procedure all of the main and conjunctive charges of this case, but did not proceed with the participatory trial procedure without any special exclusion decision, thereby infringing on the defendant's substantial right to the participatory trial. Accordingly, the court below decided that the action conducted in such unlawful procedure of trial is invalid, and that the first instance court should again proceed to the participatory trial and remanded the case to the court of first instance. The above judgment and conclusion of the court below erred by misapprehending the legal principles on the defendant's right to the participatory trial, the procedure and deliberation of the participatory trial, etc

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)