A. Whether a separate opportunity to state an opinion under Article 432 of the Criminal Procedure Act should be given in making a decision in substitution for the request for a retrial even where the reason for the request for a retrial is stated (affirmative)

(b) Method and time to provide opportunities to state opinions in accordance with the same Article;

A. Article 432 of the Criminal Procedure Act intends to seek opinions from the requester and the other party in making a decision on the request for a retrial. It is to ensure that at least the opportunity for the requester for a retrial and the other party to express their opinions is to be given an opportunity to present their opinions. This is a procedure that is required separately from submission of a written request for a retrial. Thus, even if a written request for a retrial or a written statement of supplementary grounds are stated, it is nothing more than that stating the grounds for the request for a retrial, and thus, it is necessary to separately give an opportunity to state their opinions pursuant to Article 4

B. As a matter of principle, the method and time to hear the opinion of the court is not a superior to the written statement, and there may be a request for opinion at the same time between the applicant for a retrial and the other party. However, there may be reasonable cases to hear the other party's opinion and request the opinion of the applicant for a retrial as a counter-argument, and there may be cases where it is necessary to give the opportunity to complete a hearing and make a statement when conducting a fact-finding examination in the retrial.

Article 432 of the Criminal Procedure Act

Supreme Court Order 82Mo11 dated November 15, 1982 (Gong1983,135) 83Mo43 dated December 20, 1983 (Gong1984,275) 91Mo61 dated October 22, 1991 (Gong1991,2866)

A

Seoul Criminal Court Order 92Ro14 Dated December 31, 1992

The order of the court below is reversed, and the case is remanded to the Panel Division of the Seoul Criminal Court.

The grounds of reappeal are examined.

On the first ground for appeal

1. According to the reasoning of the order of the court below, the court below held that although the claimant and the other party's opinion are heard in making a decision on the request for retrial pursuant to Article 432 of the Criminal Procedure Act, even if the court did not separately request the applicant to state their opinion, if the applicant stated his opinion in any form, it cannot be deemed that there is an error in the trial procedure. On the other hand, the court of first instance requested the prosecutor to state his opinion, but there is no trace of requesting the re-appellant, who is the applicant for a retrial, on the other hand, there is no trace of requesting the Re-appellant to state his opinion. However, the re-appellant, after stating the reasons for the request in the written request for retrial, submitted a written reason for supplementation of the lawsuit before the court below's decision on the request for retrial

2. However, Article 432 of the Criminal Procedure Act provides that a person who requested a retrial and the other party’s opinion in making a decision on the request for retrial is seeking to seek a prudentness and rationality of the trial, and that a person who requested a retrial and the other party shall be given an opportunity to express his/her opinion (see, e.g., Supreme Court Order 91Mo61, Oct. 22, 1991). This is a procedure required separately from submission of a written request for retrial. Thus, the above procedure may not be omitted on the ground that the written request for retrial stated the

In this case, as a matter of principle, the method and time to hear the opinion shall be the discretion of the court, and there shall be no relationship between the applicant for a retrial and his/her other party, and may be requested to present his/her opinion at the same time and may be separately made. However, according to the case, there is a reasonable case to first hear the other party's opinion and request the opinion of the applicant for a retrial as a counterargument to it, and it is necessary to complete the examination and give an opportunity to present his/her opinion.

3. However, according to the records, the reason why the re-appellant submitted a request for retrial is supplement to the reason why the request for retrial was filed, which is not only part of the request for retrial, and it cannot be deemed that the opinion under Article 432 of the Criminal Procedure Act is stated.

The court below held that there is a statement of opinion as it stated a request for a retrial or a supplementary reason therefor, and that there is no need to give an opportunity to state an opinion separately. However, even if there is an argument of the requester for a request for a retrial or a supplementary reason thereof, it is nothing more than that of the reasons for the request for a retrial, so the court should give an opportunity to state an opinion in accordance with Article 432 of the Criminal Procedure Act separately when making a decision on the request for a retrial.

The issue is with merit within the scope of pointing this out.

Therefore, without further proceeding to decide on the remainder of the grounds for re-appeal, we reverse and remand the order of the court below. It is so decided as per Disposition by the assent of all participating Justices.