Whether it constitutes a ground for exclusion or challenge in cases where a summary order is issued and the appellate court was involved in the trial in the procedure of the formal trial but does not participate in the judgment (negative)

In order for a judge who has issued a summary order to participate in the appellate judgment of the procedure for the formal trial, it is a cause of exclusion or challenge because the judge under Article 17 subparagraph 7 of the Criminal Procedure Act or Article 18 (1) subparagraph 1 of the Criminal Procedure Act is the case involved in the previous trial or the basic investigation and hearing of the case, and the judgment exclusion or challenge refers to the judgement procedure of the case in which the objection is raised. Therefore, even if the judge who has issued the summary order was involved in the appellate trial of the procedure for the formal trial of the case in which the objection is raised, the judge who has issued the summary order is changed thereafter and is not involved in

Articles 17(7) and 18(1) of the Criminal Procedure Act

Supreme Court Decision 4288 Form242 Delivered on October 18, 1955

Defendant

Defendant

Seoul Criminal Court Decision 84No3114 delivered on January 11, 1985

The appeal is dismissed.

We examine the grounds of appeal.

1. As to ground of appeal No. 1

If evidence is collected through the judgment of the court of first instance cited by the court below, it is sufficiently sufficient to acknowledge the criminal facts of the defendant of this case, and the circumstances of special groups to suspect the credibility of testimony of the court below and the witness of the first instance court cannot be seen. Thus, there is no reason to believe that there is no violation of the rules of evidence, incomplete hearing, and appeal against mistake of facts.

2. As to the second ground for appeal:

A judge who has issued a summary order shall be involved in the appellate judgment of the relevant formal trial procedure as provided in Article 17 subparag. 7 and Article 18(1) subparag. 1 of the Criminal Procedure Act because he/she falls under the case where a judge is involved in the previous trial or the investigation that is the basis of exclusion and challenge. However, a judgment of exclusion and challenge refers to the procedure of the relevant case where an objection is filed. Therefore, a judge of the Seoul Criminal District Court who has issued a summary order against the defendant was involved in the fourth trial of the court below, which is the appellate court of the relevant formal trial procedure, but the same judge cannot be deemed to have participated in the relevant case where it is evident that the judgment of the court below was replaced by the fifth trial of the court below and was not involved in the trial of the court below, and therefore there is no reason to hold the appeal as well.

Therefore, the appeal is dismissed by unanimous opinion of all participating judges. It is so decided as per Disposition.

Justices Park Jong-soo (Presiding Justice)