Defendant

Prosecutor

Attorney Hong Hob

Jeonju District Court Decision 2009Gohap48 Decided July 20, 2009

The prosecutor's appeal is dismissed.

1. Case history

A. On April 30, 2009, when the defendant was indicted for an injury by robbery with the Jeonju District Court on the charge of robbery, the above court received the above case as 2009Kahap48, and on May 16, 2009, the court of original judgment sent to the defendant a guide including a certificate of intention for participatory trial, etc. on May 19, 2009, and served the defendant on May 19, 2009. After which the defendant did not submit a written confirmation of intention, the defendant submitted to the court of original judgment a written confirmation of intention indicating the intent to proceed the above case as participatory trial on June 24, 2009.

B. In the margin of the above written confirmation of intention, the Defendant stated, “The Defendant was served with a duplicate of indictment on May 19, 2009, but did not make an application for the system of the participatory trial. During this, he became aware of the participatory trial through a private defense counsel, and as above, he was allowed to apply for a participatory trial and to do so.”

C. On June 26, 2009, the lower court sent a written request for opinion to the prosecutor of the Jeonju District Prosecutors' Office, and on the 29th of the same month received from the prosecutor the opinion that it is not reasonable to proceed the above case as a participatory trial, and on July 20, 2009, notified “the decision to proceed as a participatory trial” (hereinafter “the order of the lower court”) and “the prosecutor submitted a written appeal dissatisfied with the above decision to the lower court on July 22, 2009.”

2. Summary of grounds for appeal;

Article 8(2) and (3) of the Act on Citizen Participation in Criminal Trials (hereinafter referred to as the "Participation Act") set the period for confirmation of Defendant's will seven days, and the purport of the provision that if a document is not submitted within the above period, it shall be considered not to want a participatory trial is to harmonize Defendant's right to a participatory trial and legal stability.

However, aside from the fact that the defendant's decision to refer to the case is confirmed as a cause not attributable to him, the decision to refer the case to the case to the case where it was obvious that the 7-day period for the defendant's interest was passed by beyond the grammatic interpretation of the legal provision as shown in the judgment of the court of original judgment and for the benefit of the defendant should be criticized as a creative legal interpretation. Furthermore, the defendant's decision to refer the case to the case to the case where the court and the prosecutor about whether to conduct the participatory trial are deprived of the predictability of the court and the prosecutor's predictability as to whether to conduct the participatory trial should be deducted. Furthermore, the jury candidates are placed in an unstable position depending on the

3. The judgment of this Court

A. As to whether the order of the court below is justified

(1) According to Article 1 of the Participatory Trial Act, the purpose of the participatory trial system is to expand citizens' participation in the criminal trial in the area of judicial jurisdiction, which is a part of the state power, ② to promote judicial trust by reflecting citizens' common sense and experience in the trial procedure, ③ to realize the rule of law by allowing citizens to access and understand the trial procedure and the legal system. In addition, Article 3(1) of the Participatory Trial Act guarantees the defendant's right to a participatory trial as a legal right, and Article 5(1) of the participatory trial is subject to Article 5(1) of the Participatory Trial Act and Article 5(2) of the Participatory Trial Act provides that "the defendant does not want a participatory trial or is subject to a decision to exclude pursuant to Article 9(1) of the Participatory Trial Act shall not be a participatory Trial." Accordingly, if the defendant wants a participatory trial, it is the defendant's strict right, and it does not constitute an exception under Article 9(1) of the participatory trial, and it does not constitute an immediate appeal under Article 9(3) of the participatory.

(2) Meanwhile, in a way that reflects the Defendant’s intention to hold a participatory trial, only if the Defendant actively wants to do so, the participatory trial is conducted (the desired principle) and the defendant’s right to participate in a participatory trial is not expressed, and there is a method that allows the Defendant to submit a written statement to confirm whether the Defendant wishes to participate in a participatory trial, and the judge directly confirms the Defendant. The participatory law adopted the written principle to confirm the Defendant’s desire to participate in a participatory trial, and as a result, Article 8(2) and (3) provides that the document stating the Defendant’s desire to participate in a participatory trial shall be submitted within seven days from the date of receipt of the duplicate of the indictment, and if the Defendant fails to submit the above written statement, it shall be deemed that the participatory trial does not want a participatory trial. However, since the participatory trial was conducted first, the participatory trial may be conducted by the Defendant insufficient or inaccurate information or knowledge in exercising the right to participate in a participatory trial, and the participatory trial may be reversed or excluded from the procedural stability of Article 10(1).

(3) In this case, the legislative intent and relevant legal principles of the participation law are applied to this case, and the defendant did not submit a document stating his/her intention as to whether he/she wants a participatory trial within seven days from the date of receiving a duplicate of the indictment, and accordingly, the previous intention was reversed explicitly thereafter. Since it is clear that "the decision to exclude the participatory trial is made under Article 9 (1) of the Participatory Trial Act, or the decision to refer is made under Article 10 (1) or the first trial date is not "after the date of preparatory hearing is closed or the first trial date is open", it is reasonable to deem that the previous opinion deemed as above has been reversed as valid. In this case, the court below should make a participatory trial as a matter of course unless "the decision to exclude the participatory trial under Article 9 (1)" is "the legal right of the defendant," therefore, it is the defendant's legal right to decide again at the preparatory hearing of July 20, 2009 that "after hearing both opinions, it shall not be decided in accordance with Article 9 (1)."

(4) Ultimately, the court of original judgment’s aforementioned measure is interpreted and applied by properly interpreting and applying the participating law. Thus, it cannot be deemed that it goes beyond the grammatic interpretation of the legal provision, and it cannot be said that the court or prosecutor’s predictability is deducted, and furthermore, it cannot be said that the jury is placed in an unstable position or causes enormous loss in the litigation economy. The prosecutor’s assertion is without merit.

B. Whether the prosecutor is dissatisfied with the order of the court below

(1) According to Article 4 of the Participatory Trial Act, in the absence of special provisions in the above Act, other Acts and subordinate statutes such as the Court Organization Act and the Criminal Procedure Act apply to participatory trials, and Article 403(1) of the Criminal Procedure Act provides, “No appeal may be filed except where an immediate appeal may be filed against a court’s ruling on the jurisdiction or the litigation procedures before the judgment.”

(2) However, the order of the court below at issue in this case declared that the case shall be judged by a participatory trial with respect to the case subject to Article 5(1) of the Act on Citizen Participation. It is clear that the participatory law constitutes "decision on the procedure prior to the judgment" and Article 9(3) provides that an immediate appeal may be filed against the decision to exclude under Article 9(3). On the contrary, the part of the court below did not have any separate objection provision.

(3) Therefore, inasmuch as there is no ground that an immediate appeal may be filed against the order of the court below, such decision may not be filed pursuant to Article 403(1) of the Civil Procedure Act (or, in light of the provisions of Article 409 of the Criminal Procedure Act, that the appeal in this case has no effect of suspending the execution of the judgment).

4. Conclusion

Therefore, the order of the court below is just and the prosecutor cannot appeal against the order of the court below without procedure. Thus, the appeal of this case is without merit. It is so decided as per Disposition on the grounds above.

Judges Yellow-Hahn (Presiding Judge)