Defendant

Prosecutor

Kim Tae-hee (Court of First Instance), Lee Jong-hee (Court of Second Instance)

Attorney Kim Jong-soo (Korean)

Suwon District Court Decision 2013Gohap477 Decided December 6, 2013

The judgment of the first instance shall be reversed.

The case is remanded to Suwon District Court Panel Division.

1. Summary of grounds for appeal by the public prosecutor (the form of punishment and unfair);

The sentence sentenced by the first instance court to the accused (three years of imprisonment) is too unhued and unreasonable.

2. Ex officio determination

Before determining the grounds for appeal by the prosecutor, the court of first instance ex officio examines the legitimacy of the judgment.

A. The primary facts charged of this case are about attempted murder under Articles 254 and 250 (1) of the Criminal Act, and are subject to a participatory trial under Articles 5 (1) 2 and 5 (1) 1 of the Act on Citizen Participation in Criminal Trials (hereinafter “the Act”), and the primary facts charged of this case added to the primary facts charged are those subject to a participatory trial under Articles 3 (1) and 2 (1) 3 of the Punishment of Violences, etc. Act, and Article 257 (1) of the Criminal Act, and Article 257 (1) of the Criminal Act provides that the primary facts charged of this case shall not be acknowledged as long as the primary facts charged have been tried in accordance with the participatory trial procedure. In addition, the primary facts charged of this case should be deliberated within the participatory trial procedure, which is the participatory trial procedure for the primary facts charged pursuant to the main sentence of Article 6 (1) of the Act.

B. A participatory trial is an institution introduced to enhance the democratic legitimacy and trust of the judiciary (Article 1 of the Act). As such, any person has the right to a participatory trial as provided by law (Article 3 of the Act). As a matter of principle, a participatory trial is conducted in accordance with the procedure of a participatory trial in a case eligible for a participatory trial pursuant to the law and its rules. However, a participatory trial shall not be conducted exceptionally only where the defendant does not want a participatory trial or where a court decides to exclude because there are reasons provided under each subparagraph of Article 9(1) of the Act (Article

As above, since whether to hold a participatory trial is decided first by Defendant’s will, if a case subject to a participatory trial is indicted, the court must confirm Defendant’s desire to participate in the participatory trial in writing, etc. (Article 8(1) of the Act). To this end, Defendant or counsel must be served with a copy of the indictment, including the procedure for a participatory trial, submission of a document pursuant to Article 8(2) of the Act, restriction on change of intention pursuant to Article 8(4) of the Act, and other precautions (Article 3(1) of the Rule). If a court proceeds a participatory trial without confirming Defendant’s desire to participate in the participatory trial, it is unlawful as it seriously infringes Defendant’s right to participate in the participatory trial, and the procedure is also invalid for litigation conducted in such unlawful procedure (see Supreme Court Decision 2012Do1225, Apr. 26, 2012).

C. In addition, in light of the reasons for a participatory trial or various provisions of the "Act on Citizen Participation in Criminal Trials", a defendant has the right to a participatory trial, in principle, once he/she falls under the case subject to the above Act. Thus, even if the defendant applied to a court for a participatory trial but the court did not make a decision to exclude it due to an error or other circumstances, it is illegal that the defendant's ordinary procedural right is infringed upon the defendant's right to a participatory trial and the court's right to appeal a decision to exclude the participatory trial and the purport of guaranteeing the defendant's right to appeal a decision to exclude the above Act. Thus, the litigation conducted in an unlawful procedure shall be deemed invalid (Supreme Court Decision 2011Do7106 Decided September 8, 201

In addition, if two or more criminal facts charged are combined and the defendant's application for a participatory trial is proposed to be tried in accordance with the participatory trial procedure, it is reasonable to accept such application and try to hold a participatory trial procedure for all of these cases. It is reasonable to hold a trial in accordance with the participatory trial procedure. The part of the charges are limited to only a participatory trial procedure, and part of the charges are subject to a participatory trial procedure, and part of the charges are divided into a participatory trial procedure, and the remaining charges are done differently from the ordinary trial procedure without any special exclusion decision, and they are illegal because they violate the important procedural rights such as defendant's right to a participatory trial and appeal against the court's decision to exclude. This legal principle is the same in case where the main and ancillary charges are combined.

D. Therefore, in case where the citizen participation trial procedure is conducted under the condition that the primary facts charged are reduced due to the combination of the ancillary facts charged as to the primary facts charged, or amendments to an indictment are permitted after the institution of the public participation trial, the court shall ① inform jurors of such ancillary facts charged and the ancillary facts charged are combined during all the jury trials participating, ② if the ancillary facts charged are combined, i.e., the formation of a trial first as to whether the ancillary facts charged can be acknowledged through the whole process of the public participation trial, i., if the primary facts charged are found guilty, i.e., the determination of the ancillary facts charged should be made even if it is sufficient, and if the primary facts charged are found not guilty, i.e., the hearing should be conducted in the same order and method as to the public participation trial, and the result should be presented, i.e., the court shall have the jury clearly explain whether the conjunctive facts charged can be acknowledged or not, and ii) it shall be deemed that the preparatory facts charged can be found that the preparatory facts charged can not be established with the main facts charged.

E. However, in full view of the following circumstances acknowledged by the record, even though an application for the amendment of a bill of indictment was permitted to add the ancillary facts to the trial date on the first instance trial date, the trial was conducted since then, the trial was conducted only on the charge of attempted murder prior to the amendment of the indictment, and as such, the jury was provided with an explanation as to the attempted murder, which is the initial facts charged, and the amendment of the Act on the Punishment of Violence, Etc. was made once again again to the jury, and there was no opportunity to further inform the jury of the fact that the initial facts charged were changed again, and even if all the litigants involved in the trial at the first instance trial did not seem to have been the preliminary facts charged, it is difficult to find that there was no mentioning statement about the above ancillary facts in the first instance trial on one occasion as to whom it is doubtful whether the Defendant had attempted to commit the crime of murder or not, even if it is acknowledged that there was no opportunity for the Defendant to have participated in the trial due to the comprehensive method of the trial examination, and whether the Defendant had attempted to commit the crime of murder.

① On June 26, 2013, the instant case was prosecuted for a crime of attempted murder. The gist of the facts charged is that the Defendant, at the main point of May 22, 2013, drinking alcohol and drinking alcohol to kill the victim at the victim at the end of the police and the end of the trial on May 22, 2013, the Defendant attempted to inflict an injury of at least four weeks on the victim, even though he/she has served as a knife at the end of the police and the end of the trial.

② On July 17, 2013, the above support submitted the instant case to the participatory trial procedure and transferred it to the collegiate division of the Suwon District Court.

③ On August 23, 2013, the first instance court, to which the instant case was transferred, opened a preparatory hearing on four occasions, including the first day of preparatory hearing on August 23, 2013, and the fourth day of the same year, and opened the proceedings, such as submission of evidence, submission of opinions by prosecutors and defense counsel, submission of proof plans, attendance of witnesses, determination of the number of jurors, and formulation of a plan for the progress of proceedings. Since the Defendant alleged that there was no fact that he was knife of the victim, the presiding judge arranged the main issues in the fact-finding of the instant case as follows: (a) whether the Defendant was taking a knife from Nonindicted Party 1 (the Nonindicted Party in the judgment of the Supreme Court) at the time, and how the victim became knife in the knife.

④ On November 25, 2013, the period between the appointment of jurors and the commencement of the trial date after the closing of the preparatory hearing date, the prosecution filed an application for permission to change the indictment of this case. The summary of the ancillary facts charged is that the Defendant inflicted an injury on the victim with excessive roads, and the objective elements of the charges concerning attempted murder are identical, but only the intentional murder was changed.

⑤ On December 5, 2013, the date of selection of jurors, the presiding judge introduced the content of the facts charged in the instant case in the process of confirming whether the jury and the defendant, and the victim have a kinship and guiding the number of jurors to be selected. On December 5, 2013, the presiding judge introduced only the charge of murder and attempted murder.

6. On December 6, 2013, the first trial date, after recognizing and questioning both the procedures, the presiding judge permitted the modification of the indictment, and had the public prosecutor read the facts charged, the name of the crime, and the applicable provisions of the indictment in accordance with the written application for the modification of the indictment and the preliminary indictment. In this regard, the public defender of the first trial clearly stated that the facts charged are in the primary, preliminary, and the difference between the two facts charged is different from the criminal intent.

Therefore, at least at this point, it is clear that the preliminary charges have been presented to the trial proceedings of the participatory trial. However, it is reasonable to consider that the defense counsel's position as counsel did not mention the defendant's intention to commit murder in the process of hearing his/her defense counsel's opinion in all proceedings, which was a position to deny the defendant's absence of the victim's act in a knife, but it is reasonable to consider that the defense counsel's assertion that there was no longer a knife as well as that there was no intention to commit the crime of injury, which is the preliminary charges, as well as the intention to commit the crime of murder.

7) However, in the process of explaining the issues of the presiding judge, the explanation to the effect that the facts charged in the instant case solely relate to the attempted murder, and the key issue was also the time before the alteration of the indictment, and the explanation was made in order that only the “whether the Defendant was in custody of Nonindicted 1 at the time when the indictment was made, whether the Defendant was in custody of the knife from Nonindicted 1 at the time of the prosecution, and the developments leading the victim knife in the knife.” If the jury found him guilty on the basis of the judgment on this issue, he was given a guide that he would go beyond the sentencing discussion, and the explanation was omitted to the effect that the Defendant would make a successive judgment on the injury of deadly weapons, which is the ancillary facts, in the event that the Defendant’s recognition of murder or the intention of committing murder

8) Although it may be difficult due to the impact of the presiding judge’s reorganization of the issues, the examination procedures, such as the examination of the witness conducted on the same day, and the examination procedures of the defendant on December 6, 2013, including the examination procedures of the second trial date, the prosecutor, the defense counsel, the final statement procedures for the defendant, and the explanation procedures of the presiding judge only include the fact that the defendant knifeeds the victim, and the public trial and deliberation were conducted. There is no express explanation about the issue of the crime of murder, except for the case where the prosecutor mentions misunderstanding, and there is no further mentioning about the contents, methods, and sentencing materials about the conjunctive facts. In particular, the presiding judge, through the jury statement prepared by the first trial division, did not fully explain the final statement by the jury statement and distributed the jury statement to him, and even if such information was omitted, it can be acknowledged that the conjunctive facts of the facts charged were omitted from the name of the crime indicated in the sign and the content of the offense charged, and it can be acknowledged that the facts of the crime charged were omitted.

9. Through these processes, jurors have delivered a verdict of conviction by a five-year majority of conviction and four-year majority of innocence, and presented sentencing opinions showing the distribution of imprisonment with prison labor from two years and six-years based on the statutory penalty for the crime of attempted murder.

F. Sub-decision

If so, the court of first instance accepted the defendant's application for a participatory trial and referred all the ancillary and ancillary charges of this case to the participatory trial procedure without any special exclusion decision, it should be deemed that the part of the conjunctive charges did not proceed to the participatory trial procedure and reached the judgment. This is unlawful by infringing the defendant's substantial part of the defendant's right to a participatory trial, and thus, the litigation procedure conducted in an unlawful

G. Additional Judgment

As seen earlier, the first instance court’s judgment, which omitted the deliberation on the ancillary charge itself, caused a cause for reversal and return to the first instance court’s judgment itself. Meanwhile, while the first instance court tried to proceed in response to the Defendant’s desire as to attempted murder, the first instance court’s conviction of attempted murder in this case, the issue of whether to recognize murder, which constitutes a single key issue, may be limited to the fact that the Defendant knife a victim, and the trial is conducted to consider that the crime of attempted murder may be recognized if the Defendant was committed. In addition, the first instance court’s explanation about the illegality of the first instance court’s measure is sufficient to re-examine the appellate court’s judgment, which has the nature of the inner trial, and whether the first instance court’s judgment should be reversed and remanded again by the first instance court, because it is evaluated that the first instance court violated the Defendant’s right to receive a proper participatory trial due to a serious error in the procedure, and it may be an issue to additionally examine this point.

The jury statement of this case is the only issue to be judged by jurors, and immediately stated matters related to sentencing for the crime of murder in which the defendant knife had a knife as being directly connected to murder. However, in order to find the defendant guilty of attempted murder in this case, the first instance court should first have determined whether the defendant committed an act with a knife with a victim as an objective element of the first instance trial and whether the defendant had an intention to kills a victim as a subjective element of the first instance trial should be examined. Further, the defendant's act cannot be acknowledged as more and more even with respect to the criminal intent of murder, and thus, the court should have tried through the citizen participation trial procedure without mentioning the above facts. If it is acknowledged that the defendant committed an attempted murder in this case with a knife as a knife, the court should have determined that the defendant did not have any key issue in determining whether the defendant committed an attempted murder in this case's basic part of the facts, such as the situation and result of injury before and after the trial.

3. Conclusion

In conclusion, the first instance court's violation of the Act on Citizen Participation in Criminal Trials and there exists a reason to reverse the first instance court's judgment ex officio. Thus, the first instance court's judgment is reversed pursuant to Article 364 (2) of the Criminal Procedure Act. The first instance court's trial procedure is bound to be conducted in the first instance court. The first instance court's trial procedure is necessary to correct and re-determine important procedural errors. Thus, the first instance court's correction of such procedural errors must return the case to the first instance court by applying mutatis mutandis Article 366 of the Criminal Procedure Act. It is so decided as per

Judges Kim Sang-sung (Presiding Judge)

1) In the first instance trial proceeding in accordance with the participatory trial procedure, the Defendant actively disputed the facts charged while denying the charge that the Defendant committed the attempted murder, but the Defendant was found guilty on the ground that his assertion was not accepted. Although the Defendant did not file a lawful appeal to the extent that the period of appeal expires, it is due to the erroneous understanding of the period of appeal, and the appellate trial explicitly expresses that it is not the purport of recognizing the facts charged. On the other hand, the Defendant’s public defender did not file an appeal for the Defendant.

2) The charge of attempted murder was instituted solely on the initial charge, but the first instance court applied for changes in indictment on November 25, 2013 with regard to the injury by deadly weapons during the preparatory proceedings, and the amendment of indictment was permitted on the date of the first instance trial in which the jury participated.

Note 3) The trial records 57 pages

4) It can be understood that the record of the public trial is limited to the charge of murdering and attempted crimes, on the basis that no permission for an application for changes in the indictment has been granted until 100 pages and 102 pages. However, on the other hand, the name of the crime was notified in the preliminary name of the crime, as well as the crime of injury with deadly weapons, and such attitude is not consistent.

Note 5) The trial records 138 pages.

Note 6) The trial records 139-141 pages.

Note 7) Court records 141-142 pages 142

8) Even in a case of attempted murder for which the facts charged of murder with deadly weapon injury were not combined, if the Defendant denies the attempted murder itself, it should be deemed that the Defendant denies the attempted murder. As such, even if the facts charged as to the attempted murder can be acknowledged, it is not immediately a criminal intent, but a separate issue is whether there was a criminal intent to commit murder, and it is a common method of review to make a decision by comprehensively taking into account various indirect circumstances, and thus, it is not reasonable to limit the issues of the attempted murder case as above.

9) In the process of making a statement of final opinion, the prosecutor stated that “if the defendant has reached kniff, whether he intentionally reaches kniff” (the trial record 121 pages). In the end of his final opinion, the prosecutor argued in the part of his final opinion that “the intention of knife would be recognized if the knife is recognized because the intention of knife would not be disputed by the defendant,” and that “the intention of knife would be recognized as the intention of knife.e., murder.” However, this part of this part is nothing more than that the prosecutor’s statement is contrary to the position of the defendant and his defense counsel in preparation for a case where the criminal intention of knife is not recognized, and there is no objection by the defense counsel or the court’s corrective action against this assertion.

Note 10) Trial Records 223, 226 pages 226

11) The first instance court convicted Nonindicted 2 of the facts charged in the instant case based on the evidence despite the Defendant’s consent to the admissibility of the protocol of statement prepared by the police against Nonindicted 2. However, the first instance court’s aforementioned judgment is admissible as evidence pursuant to Article 314(2) of the Criminal Procedure Act. In this case, the existence of specificity is the requirement, and this part of the proof is not sufficient to the extent that it is probable, and it should be ruled out to the extent that reasonable deliberation is possible (see Supreme Court Decision 2013Do12652, Feb. 21, 2014). According to the records, Nonindicted 2, who was punished for the time of taking a main place similar to the instant case while being investigated, was subject to a new investigation, and was forced after being tried in the instant case. In recognition of the peculiar nature of Nonindicted 2’s above protocol of statement, it is necessary to seriously examine it.