[1] Where a defendant of a case eligible for a participatory trial applied for a participatory trial without a court's decision to exclude it, whether the case was illegal (affirmative), and the validity of the litigation conducted in the above procedure (=negative)

[2] In a case where the first instance court did not confirm the intention to apply for a participatory trial while proceeding the first trial date before seven days after the delivery of a copy of the indictment on the defendant's injury caused by rape, and proceed with a trial in ordinary procedure without a decision not to exclude the defendant's application for a participatory trial to arrive thereafter, the case reversing the judgment of the court below and the first instance court all of the judgment and the case are reversed and remanded to the first instance court on the ground that the litigation conducted in unlawful procedure in the

[1] In light of the reasons why a participatory trial is held or various provisions of the "Act on Citizen Participation in Criminal Trials", a defendant has the right to a participatory trial in principle, so the defendant has the right to a participatory trial. Thus, even if the defendant applied to a court for a participatory trial but the court did not make a decision to exclude it, it is illegal that the defendant's right to a participatory trial and the right to appeal against the court's decision to exclude it is infringed upon the defendant's right to a participatory trial, and it is unlawful that the procedure conducted in an unlawful trial is invalid in light of the purport of introducing the participatory trial system

[2] In a case where the first instance court did not confirm the intention to apply for a participatory trial while proceeding the first trial date before seven days after the delivery of a copy of the indictment against the defendant's injury caused by rape, and where the defendant received the application for a participatory trial to the detention center head before the trial date but did not make a decision to exclude the application, the case reversing the judgment of the first instance court and the first instance court which dismissed the defendant's appeal on the ground that there was an error of law by misunderstanding legal principles as to the right to a participatory trial and procedural defect in the legal procedure, since the defendant's right to receive a participatory trial was infringed and the right to appeal against the exclusion decision was deprived of the right to receive an immediate appeal against the exclusion decision, and the first instance court's judgment is null and void.

[1] Articles 1, 3, 5(1) and (2), 8(1) and (2), and 9(1), (2), and (3) of the Act on Citizen Participation in Criminal Trials / [2] Article 301 of the Criminal Act; Articles 5(1)1, 8(1) and (2), and 9(1) and (3) of the Act on Citizen Participation in Criminal Trials; Articles 391 and 396 of the Criminal Procedure Act

[1] Supreme Court Order 2009Mo1032 dated October 23, 2009 (Gong2009Ha, 1957)

Defendant

Defendant

Attorney Lee Jin-jin

Daegu High Court Decision 2010No613 decided May 26, 2011

The judgment of the court of first instance and the judgment of the court of first instance are reversed. The case is remanded to the Daegu District Court Kimcheon Branch Panel Division.

We first examine the grounds of appeal on infringement of the right to a participatory trial.

According to Article 5 (1) 1 of the Act on Citizen Participation in Criminal Trials, since the crime of bodily harm caused by rape under Article 301 of the Criminal Act is subject to a participatory trial, the court must confirm to the defendant whether he/she wishes a participatory trial in writing, etc. (Article 8 (1) of the same Act). The defendant shall submit a written statement of his/her intent as to whether he/she wishes a participatory trial within seven days from the date he/she is served with a duplicate of the indictment (Article 8 (2) of the same Act). In cases falling under any of the subparagraphs of Article 9 (1) of the Act, the court may decide not to proceed to a participatory trial (Article 9 (1) of the same Act). The court shall hear the opinion of the prosecutor, the defendant, or his/her counsel before making the above decision (Article 8 (2) of the same Act), and may file an immediate appeal against a decision under paragraph (1) (Article 8 (3) of the same Act).

In addition, the reason why a participatory trial is held is to enhance the democratic legitimacy and trust of the judiciary (Article 1 of the Act) and any person has the right to a participatory trial as prescribed by the law (Article 3 of the Act). However, the case subject to a participatory trial is limited to a case subject to a participatory trial in consideration of all the initial charges in the implementation period (Article 3 of the Act). Thus, a defendant has the right to a participatory trial in principle, and a defendant does not want a participatory trial or a defendant does not proceed a participatory trial due to a decision of exclusion pursuant to Article 9 (1) of the Act (Article 5 (1) and (2) of the Act). The Act provides for an immediate appeal against a decision of exclusion from a participatory trial (Article 9 (3) of the Act). It is also deemed that there is no other way of appeal against the judgment of the court that is to proceed to a participatory trial (see Supreme Court Order 2009Mo1032, Oct. 23, 2009).

Therefore, it is illegal that the defendant's ordinary procedure without a court's decision to exclude a participatory trial even though the defendant applied for a participatory trial to the court is an infringement of the defendant's right to a participatory trial and the defendant's right to appeal against the court's decision to exclude a participatory trial, and thus, it is unlawful. In light of the above purport of the introduction of the participatory trial system or the purport of guaranteeing the right to appeal against the decision

According to the records, the first instance court of this case did not grant the defendant a period prescribed by the Act for the purpose of applying for a participatory trial even after seven days have passed from the date on which the copy of indictment was served on the defendant, and did not grant the defendant a period prescribed by the Act for the purpose of applying for a participatory trial. Nevertheless, the defendant submitted a participatory trial application to the head of the detention center immediately before the first trial date, but the above application was received by the court after the first trial date was in progress. Accordingly, even though the defendant applied for a participatory trial, the defendant was infringed the right to receive a participatory trial by being tried by ordinary trial procedure, and the fact that the first instance court was deprived of the right to receive a participatory trial due to the fact that the defendant did not make a decision to exclude the above application, so the litigation procedure conducted in illegal trial procedure is null and void. Accordingly, the judgment of the first instance court does not escape because the litigation procedure violated the Act and subordinate statutes, and thus, it did not escape the reversal.

In addition, since the defect in the litigation procedure of the court of first instance falls under the ground for ex officio examination, even though the defendant did not appeal this point as the ground for appeal, the court of first instance should have reversed ex officio the judgment by examining it, but the court of first instance dismissed the defendant's appeal without examining and making any decision on the illegality of the judgment of the court of first instance. Thus, the judgment of the court of first instance is erroneous in the misunderstanding of legal principles as to the right to a participatory trial and the defect in litigation procedure, which affected the conclusion

Therefore, applying Articles 391 and 396 of the Criminal Procedure Act, the judgment of the court below and the judgment of the court of first instance are reversed, and the case is remanded to the court of first instance. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee In-bok (Presiding Justice)