Effect of the ruling of permission for release on bail without hearing the prosecutor;

Since the procedure for hearing the opinion of the prosecutor is not an essential part of the decision on the release on bail, even if the court made the decision on the release on bail without hearing the opinion of the prosecutor, the decision on the release on bail cannot be revoked only with procedural defects.

Article 97(1) of the Criminal Procedure Act

Prosecutor

Defendant

Attorney Kim Jong-ok

Busan District Court Order 97Ro9 dated August 13, 1997

The reappeal is dismissed.

The grounds of reappeal are examined.

The decision on whether to continue the detention of the accused against whom a prosecution has been instituted is entirely subject to the exclusive jurisdiction of the court of the lawsuit. Article 97(1) of the Criminal Procedure Act, which provides that the court shall hear the prosecutor's opinion in making a ruling on bail, aims to give the prosecutor an opportunity to submit reasons and materials to the court for the necessity of the continuation of detention, and to make the court appropriate for the decision by having the court refer to the materials, etc. submitted, and the opinion of the prosecutor under the above provision shall not be binding on the court.

Therefore, since the procedure for hearing the opinion of the prosecutor does not constitute an essential part of the decision on bail, even if the court decided on bail without hearing the prosecutor's opinion, the decision cannot be cancelled due to the procedural defect such as the theory of lawsuit, so long as the decision is reasonable. The order of the court below to the same purport is just and there is no error of law such as the theory of lawsuit. All arguments are without merit.

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Im-soo (Presiding Justice)