In a case where the defendant was convicted in the first instance court as the case (i.e., the case) and the case (i., the case), and the case (i.e., the second instance court), and the appellate court did not provide sufficient guidance on the participatory trial procedure, and reversed and remanded all the cases under a consolidated trial to the first instance court on the ground that there was a defect in the procedure of not providing sufficient guidance on the participatory trial procedure, and that one sentence should be sentenced in relation to the case (i.e., concurrent crimes) as to the case in the first instance court, the first instance court reversed and remanded all the cases under a joint trial to the first instance court, and the first instance court submitted a written confirmation that the defendant wanting to participate in the participatory trial after remand, but the defendant appealed against the defect in the decision to exclude the participatory trial based on Article 9 (1) 4 of the Act on Citizen Participation in Criminal Trials, on the ground that it is unreasonable to cancel the above decision to exclude the participatory trial on the ground that the first instance court's second instance court's ordinary trial procedure for the case.

In the first instance court, the defendant was sentenced to a conviction of 15 years for the case Gap (hereinafter referred to as the "mother case") and the case Eul (hereinafter referred to as the "self-case") combined with the related cases. The appellate court reversed and remanded all the cases under a consolidated trial to the first instance court for the reason that there is a defect in the procedure that the appellate court did not give sufficient guidance on the participatory trial procedure, and that there is concurrent crimes under the former part of Article 37 of the Criminal Act with regard to the mother case, and one sentence should be sentenced. After remand the case, the first instance court issued a written confirmation of the intention of the participatory trial and a guide to the defendant's desire to the participatory trial, but it is impossible for the defendant to proceed with the participatory trial procedure after reversal and return after confirming the defendant's desire not to have the participatory trial in the first instance court, and in the case of the mother case, it is not possible to proceed with the participatory trial procedure after reversal and return, and as long as the case has no choice but to proceed with the ordinary trial procedure, it should be excluded from the citizen's participation trial procedure.

It seems unreasonable to proceed to a participatory trial again because the first instance court erred in the guidance procedure for a participatory trial before remanded the case, and it seems unreasonable to proceed to a participatory trial again because it seems unreasonable to proceed to a participatory trial again. However, it is clear that if the first instance court first instance court's instruction procedure for a participatory trial from the beginning, it would have been possible for the defendant to lawfully proceed to the participatory trial at that stage, and it would not be possible to determine that the defendant's case would not be eligible to a participatory trial just because he/she would normally proceed to a participatory trial according to the defendant's intention, and it would not be necessary to proceed to the participatory trial only upon the request for medical treatment custody and attachment order, or it would be decided that it would not be necessary to proceed to the participatory trial, and it would not be appropriate to proceed to the participatory trial in light of the contents of the dispute, and it would not be reasonable to exclude the first instance court's decision as to the whole case after remanding the first instance trial procedure and its purport.

Articles 1, 3, 5, 8, 9(1)4, (2), and (3) of the Act on Citizen Participation in Criminal Trials; Article 32(1) of the Court Organization Act; Articles 11 and 414(2) of the Criminal Procedure Act

Defendant

Defendant

Busan District Court Decision 202Gohap272 decided November 20, 2020 excluding participatory trial of November 20, 2020

The order of the court below is revoked.

1. Progress of the original judgment

A. On July 9, 2020, the Defendant was convicted of 15 years of imprisonment with prison labor in Daegu District Court Decision 2020Gohap25, 2020Gohap56 (Consolidated).

B. The Defendant appealed against the above judgment, and the appellate court (Tgu High Court 2020No287) reversed and remanded the entire case under a consolidated trial to the collegiate division of the Daegu District Court hereinafter referred to as the "Tgu District Court 2020No287") on the grounds that there are procedural defects in the procedure that the first instance court did not give sufficient guidance about the participatory trial procedure or give considerable time to the Defendant, such as issuing or delivering a written instruction to the participatory trial, etc., and that there should be concurrent crimes under the former part of Article 37 of the Criminal Act with regard to the 2020 Gohap25 case, and one punishment should be imposed.

C. On October 30, 2020, the lower court sent to the Defendant a certificate of intent and a guide for a participatory trial on the case after remanding the case (Tgu District Court Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Decision 2020 Gohap272), and the Defendant submitted a certificate of desire to participate in a participatory trial on November 3, 2020.

D. On November 4, 2020, the lower court requested a prosecutor and his defense counsel to present their opinions on whether to exclude a participatory trial pursuant to Article 9(2) of the Act on Citizen Participation in Criminal Trials (hereinafter “National Participatory Trial Act”). The prosecutor submitted a written opinion that the decision to exclude a participatory trial is reasonable, and the Defendant’s defense counsel submitted a written opinion that the participatory trial would proceed as a participatory trial.

E. On November 20, 2020, the lower court rendered a decision not to proceed to a participatory trial based on Article 9(1)4 of the Act on the participatory Trial (hereinafter “instant decision to exclude”) on the ground that the following circumstances were stated, and that “after re-delivery, the case cannot proceed to the participatory trial procedure” was “the participatory trial procedure” (hereinafter “instant decision to exclude”).

2. Summary of grounds for appeal;

An appellant is not notified by the court of the guidance procedure for the participatory trial, and wishes to participate in the participatory trial.

3. Determination

A. A participatory trial conducted pursuant to the Act on the participatory Trial is a system introduced to enhance democratic legitimacy and trust of justice (Article 1 of the Act on the participatory Trial), and any person has the right to a participatory trial as prescribed by law (Article 3 of the same Act), and a case is conducted in accordance with the participatory trial procedure under the Act on the participatory Trial and its rules (Article 5(1) of the same Act). Thus, if a defendant wants a participatory trial, a participatory trial shall be conducted in accordance with Article 9(1)4 (Article 9(1) of the Act on the participatory Trial where it is deemed inappropriate to proceed to a participatory trial).

B. The court below reversed and remanded all the cases of the appellate court ( Daegu High Court 2020No287) and 2020 Gohap56 (hereinafter “self-case”) from the appellate court (Seoul High Court 2020No287). However, in the case of the mother case, the first instance court confirmed that the defendant does not want a participatory trial in accordance with legitimate procedures in the case of the mother case, and that the first instance court proceedings are effective even after reversal and return, the first instance court proceedings are reversed and remanded. Since the restriction on the reversal of the intention under Article 8(4) of the Act on the participatory Trial (the defendant shall not be able to change the previous proceedings after the preparatory hearing date is terminated or the first trial date is open) is applicable, it is impossible to proceed with a participatory trial. ② If the mother case is joined into the case related to the mother case, it is inevitable to proceed with a trial as a single procedure based on the mother case, but it is not a participatory trial proceeding but a participatory trial proceeding.

C. However, the order of the court below is not acceptable for the following reasons.

1) Article 5(1) of the Act on the Citizen Participation in Criminal Trials provides that cases under the jurisdiction of collegiate panel(s) under Article 32(1)(s) of the Court Organization Act (excluding subparagraphs 2 and 5) shall be cases eligible for a participatory trial, and Article 11(s) of the Criminal Procedure Act shall also be cases subject to a participatory trial (Article 11(3) of the same Act. The types and timing of consolidation of related cases are cases under the jurisdiction of a single judge, where consolidated proceedings are essential (where medical treatment and custody is requested during the defendant case), where combined proceedings are conducted before the first trial of the mother case (where combined cases are under the jurisdiction of a single judge), and where combined cases are under the jurisdiction of a single judge, such cases shall be included in cases under the jurisdiction of a single judge, and the scope thereof shall be expanded by including cases subject to a participatory trial. Furthermore, consolidation of cases shall be limited to cases subject to a participatory trial once or before the date of examination of evidence, and even if the defendant does not have any right to a participatory trial case, it can be interpreted by the entire decision of the citizen trial proceedings.

2) Article 8(4) of the Act on the participatory Trial provides that Defendant may not change his/her intention to a participatory trial after the date of preparatory hearing is closed or the first trial date is open. Thus, Defendant cannot change his/her previous desire to a participatory trial. However, this does not regulate whether Defendant’s previous desire to a participatory trial will proceed to a participatory trial by limiting the time of change of his/her opinion on a participatory trial, and the procedure of whether to proceed to a participatory trial is stable. If there is a case of a person for whom a decision to conduct a participatory trial has been made as in this case and Defendant is able to proceed to a participatory trial due to Defendant’s desire to a participatory trial, it does not regulate whether mother case can proceed to a participatory trial along with his/her own case. Accordingly, on the basis of this provision, it cannot be deemed impossible for Defendant to proceed to a participatory trial even after a decision to conduct

3) In the instant case, since the first instance court erred in the guidance procedure for the participatory trial and sentenced the judgment, it seems unreasonable to proceed to the participatory trial again. However, it is evident that the first instance court may have tried a participatory trial at that stage if the first instance court lawfully conducted the guidance procedure for the first instance case from the beginning, and it cannot be determined that the case is not eligible for the participatory trial solely on the ground that the defendant had been going to the ordinary procedure according to the defendant's intention. This is because, in a case where the first instance court decided that the participatory trial is not necessary after the defendant's case was prosecuted only and requested for medical treatment and custody and attachment order, it does not seem to be different from the case where the first instance court decided that there was no issue to proceed to the participatory trial while the case was prosecuted, and it does not seem to have been decided that there was a need to undergo the participatory trial in light of the contents of the dispute, and it does not clearly violate the language and purport of Article 5 (1) 3 and the remaining provisions of the participatory trial Act.

D. Therefore, it is inappropriate for the lower court to consider that the entire case cannot be a participatory trial because it was conducted by Defendant’s non-public participation trial due to Defendant’s non-public participation trial. Furthermore, it is inappropriate for the lower court to consider that the entire case cannot be conducted as a participatory trial. Furthermore, in addition to the grounds indicated in the lower court, it is reasonable to consider whether the grounds for exclusion under Article 9(1)4 (other cases deemed inappropriate to proceed as a participatory trial) of the Act on the Public Participation in Criminal Trials are acknowledged. In light of the facts charged in the instant case, issues and degree of deliberation, expected hearing procedures and contents in the future, it is difficult to see that it is inappropriate to proceed as a participatory trial in light of the facts charged in the instant case, the lower court’s determination that it is inappropriate to proceed as a participatory trial in order to prevent Defendant from spreading ordinary procedure twice in the first instance trial and promote the economy of litigation, and that it is inappropriate to reverse the first instance court’s judgment without considering new circumstances that the first instance court’s first instance court’s decision could not be remanded.

4. Conclusion

Since the appeal of this case is well-grounded, the order of the court below shall be cancelled in accordance with Article 414(2) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim J-woo (Presiding Judge)