In a case where a judge who investigated evidence used as evidence of guilt in the first instance judgment participates in the appellate trial, whether it constitutes a ground for exclusion under Article 17 subparagraph 7 of the Criminal Procedure Act (affirmative)

In the judgment of the first instance, the judge who investigated the evidence used as evidence of guilt against the defendant was involved in the investigation and the trial which are the basis of the previous trial under Article 17 subparagraph 7 of the Criminal Procedure Act, and the judge who participated in the investigation and the trial which are the basis of the previous trial shall not participate in the appellate trial after being excluded from the execution of duties.

Defendant

Defendant

Attorney Lee Sang-hee

Cheongju District Court Decision 99No321 delivered on July 23, 1999

The judgment of the court below is reversed, and the case is remanded to Cheongju District Court Panel Division.

The defendant's grounds of appeal are examined (to the extent of supplement in case of supplemental appellate brief for defense counsel).

According to the records, the judge, which was pointed out in the ground of appeal, examined the suspect's interrogation protocol, Lee Jong-chul, Kim Jong-soo, Kim Jong-soo, and Kim Jong-sung, submitted as evidence of the facts charged at the first trial of the first instance of this case on the date of the first trial of this case, and thereafter, the above evidence was used as evidence of conviction against the defendant in the judgment of the first instance of this case (the judgment was delivered by another judge who was replaced thereafter).

In the same way, the judge involved in the investigation and hearing which are the basis of the previous trial under Article 17 subparagraph 7 of the Criminal Procedure Act, and the judge who participated in the investigation and hearing which are the basis of the previous trial shall be excluded from the execution of duties and shall not participate in the appellate trial of this case.

Although that judge, he participated in the presiding judge of the appellate court of this case and sentenced the judgment of the court below, which is clear that it is illegal, and it has influenced the judgment. The appeal pointing this out is justified.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)