Whether measures taken by the presiding judge who did not allow the examination of all defendants by the defense counsel despite having expressed his/her intent to examine the defendant in the appellate trial constitute grounds of appeal as a violation of law in the litigation procedure

Article 370 and the main text of Article 296-2(1) of the Criminal Procedure Act provides, “The prosecutor or defense counsel may successively examine the accused with necessary matters concerning facts charged and circumstances after the examination of evidence is completed.” Thus, the defense counsel’s right to examine the accused is the right of defense counsel under the Civil Procedure Act. Meanwhile, the presiding judge may limit the whole or part of the examination in a case where the examination of the accused is overlapped with the examination of the first instance court or it is deemed unnecessary to determine the propriety of the grounds for appeal in the appellate trial (see Articles 156-6(2) of the Regulation on Criminal Procedure). However, if the presiding judge expresses his/her intention to examine the accused, the presiding judge shall take measures so that the accused may be examined, and if the defense counsel expresses his/her intention to examine the accused, the failure to permit the examination of the accused to examine the accused constitutes a violation of the fundamental rights of the defense counsel concerning the right to examine the accused and constitutes a violation of law in litigation proceedings.

Articles 296-2(1), 299, 370, and 383 subparag. 1 of the Criminal Procedure Act; Article 156-6(1) and (2) of the Regulation on Criminal Procedure

Defendant

Defendant

Law Firm (LLC) LLC, Attorney Park Dong-ju

Jeonju District Court Decision 2020No149 decided July 15, 2020

The judgment below is reversed, and the case is remanded to the Jeonju District Court.

The grounds of appeal are examined.

1. Articles 370 and 296-2(1) main text of the Criminal Procedure Act provide, “The prosecutor or defense counsel may successively examine the accused with necessary matters concerning facts charged and circumstances after the examination of evidence is completed.” Thus, the right of the defense counsel to examine the accused is the right under the Litigation Act. Meanwhile, in a case where the public prosecutor or defense counsel conducts the examination of the accused at the appellate court and it is deemed unnecessary to determine whether the grounds for appeal overlap with the examination of the accused in the first instance or are appropriate, the whole or part of the examination may be restricted (see Articles 370 and 299 of the Criminal Procedure Act). However, the presiding judge may not take measures to allow the examination of the accused when the defense counsel expresses his/her intention to examine the accused (see Articles 370 and 299 of the Criminal Procedure Act). The failure of the defense counsel to permit the examination of the accused even though the defense counsel expressed his/her intention to examine the accused constitutes a violation of the fundamental rights of the defense counsel concerning the right of the defendant.

2. According to the records, upon the completion of the examination of evidence on the second trial date on June 17, 2020, the court below's defense attorney expressed his/her intent to examine the defendant to the presiding judge, but the presiding judge ordered the defendant not to examine the defendant and submit the contents of his/her claim to the defense counsel as a summary of the pleading, and it can be known that the court of the trial was sentenced on the third trial date on July 15, 2020.

3. Examining the above facts in light of the legal principles as seen earlier, the court below’s decision to terminate the pleadings without proceeding to examine the defendant even though the defense counsel expressed his/her intention to examine the defendant, and erred by violating the Acts and subordinate statutes relating to legal proceedings. The ground of appeal assigning this error is with merit.

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-hee (Presiding Justice)