In a case where a judge who has issued a summary order was involved in the appellate judgment of the formal trial procedure, whether it constitutes a ground for exclusion under Article 17 subparagraph 7 of the Criminal Procedure Act (affirmative)

Article 17 subparag. 7 of the Criminal Procedure Act

Supreme Court Decision 4288Do242 Decided October 18, 1955, Supreme Court Decision 85Do281 Decided April 23, 1985 (Gong1985, 814) Supreme Court Decision 2001Do4936 Decided February 26, 2002

Defendant

Prosecutor

Chuncheon District Court Decision 2010No530 decided December 17, 2010

The judgment of the court below is reversed, and the case is remanded to Chuncheon District Court Panel Division.

The grounds of appeal are examined.

Article 17 subparagraph 7 of the Criminal Procedure Act that a judge who has issued a summary order participates in the appellate judgment of the formal trial procedure constitutes "when the judge has participated in the previous trial or its basic investigation or trial on the case" and constitutes grounds for exclusion (see Supreme Court Decisions 85Do281, Apr. 23, 1985; 2001Do4936, Feb. 26, 2002, etc.).

The record reveals that the judge who issued a summary order has participated in the judgment of the court below, which is the appellate court of the formal trial procedure for the summary order. Thus, the court below erred in the violation of law which affected the conclusion of the judgment by the judge who is not entitled to participate in the trial of the case. The ground of appeal pointing this out is with merit.

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Ahn Dai-hee (Presiding Justice)