In a case where a court issues a detention warrant to a defendant without undergoing the procedure under Article 72 of the Criminal Procedure Act in advance, whether the decision to issue the detention warrant is unlawful (affirmative) / In a case where procedural right prescribed in the above provision is substantially guaranteed, whether the decision to issue the detention warrant is illegal only if it issues the detention warrant without undergoing all or part of the relevant procedure (negative), and in a case where the issuance of the detention warrant is legitimate

Article 72 of the Criminal Procedure Act provides that "no person shall be detained unless he/she has given an opportunity to defend himself/herself for the summary of the crime, the reason for detention, and the opportunity to defend himself/herself, and unless he/she has given an opportunity to defend himself/herself," and where the court has issued a detention warrant to the defendant without going through the aforementioned provisions, the decision to issue the warrant is unlawful.

Meanwhile, since the above provision guarantees the procedural rights of the defendant, in cases where the procedural rights prescribed in the above provision are deemed to have been substantially guaranteed, such as cases where a defense counsel was already appointed to make a vindication and present evidence in the trial proceedings and a judgment rendered under his/her defense counsel, even if a detention warrant was issued without having gone through all or part of the corresponding procedure, the decision to issue a detention warrant is not unlawful. However, despite the defect in the prior hearing procedure, the reason to deem the issuance of a detention warrant lawful is that the issuance of a detention warrant is lawful, due to the fact that sufficient vindication and defense for the criminal facts to the extent that the judgment can be rendered by submitting evidence, investigating evidence, and oral argument in the trial proceedings, and the defendant is given sufficient opportunity to vindicate the criminal facts and reasons for detention. Thus, unless there are grounds to the same extent, the illegality of the

Article 72 of the Criminal Procedure Act

Supreme Court Order 200Mo134 Decided November 10, 2000 (Gong2001Sang, 311) Supreme Court Decision 2001Do1154 Decided May 29, 2001

Re-appellant

Seoul Central District Court Order 2015Ro66 dated April 6, 2015

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

The grounds of reappeal are examined.

1. According to the reasoning of the order of the court below, as to the defendant's assertion that the decision to issue a detention warrant was unlawful since the first instance court did not follow the prior hearing procedure under Article 72 of the Criminal Procedure Act when issuing a detention warrant, the court below held that the decision to issue a detention warrant was lawful on the ground that the defendant's procedural right under Article 72 of the Criminal Procedure Act was substantially guaranteed, since the charges on the crime stated in the detention warrant were separately indicted and the facts charged were read on the trial date after the consolidation and the defendant was given an opportunity to testify

2. However, it is difficult to accept the above determination by the court below for the following reasons.

Article 72 of the Criminal Procedure Act provides that "no person shall be detained unless he has given an opportunity to defend himself/herself for the summary of the crime, the reason for detention, and the opportunity to defend himself/herself." The provisions of Article 72 of the Criminal Procedure Act provide the procedure of a prior hearing by a judge in the detention of the defendant. If the court issued a detention warrant to the defendant without going through the aforementioned procedure in advance, the decision to issue the warrant is unlawful (see Supreme Court Order 200Mo134, Nov. 10, 200).

Meanwhile, since the above provision guarantees the procedural rights of the defendant, in cases where the procedural rights prescribed in the above provision are deemed to have been substantially guaranteed, such as cases where a defense counsel was already appointed to serve as a defense counsel and present defense evidence in the trial proceedings and the defendant was sentenced under his defense counsel, even if a detention warrant was issued without going through all or part of the corresponding procedure, such fact alone does not constitute unlawful (see Supreme Court Order 200Mo134, May 29, 2001; Supreme Court Order 2001Do1154, May 29, 2001, etc.). Thus, the reason for deeming the issuance of a detention warrant lawful despite the defect in the prior hearing procedure as above is that the submission of evidence, investigation and pleading, etc. in the trial procedure, and the defendant is sufficiently given an opportunity to defend the criminal facts and the reasons for detention, and thus, the error in the hearing procedure should not be interpreted without permission, unless there are any grounds to the same extent.

According to the records, in the case including general traffic obstruction, etc. (hereinafter “instant case”), the Defendant was detained on September 19, 2014 under a detention warrant issued on September 19, 2014 (hereinafter “first detention warrant”) and tried on September 26, 2014. During the trial, the Defendant was indicted and tried on September 26, 2014. On December 15, 2014, the first instance court issued a separate detention warrant on December 22, 2014 (hereinafter “second case”) to the effect that “the first instance court issued the two separate detention warrant on December 20, 2014” and “the first instance court issued the two separate detention warrant on January 20, 2015 to the effect that the first instance court rejected the indictment by the prosecutor on September 24, 2014, and the second instance court did not proceed with the first instance court as to the facts charged, including denial of the indictment and the second instance court’s evidence evidence examination.”

Examining the above facts in light of the legal principles as seen earlier, the first instance court did not go through the procedure under Article 72 of the Criminal Procedure Act before issuing the second detention warrant. On the previous trial date, the fact that the prosecutor reads the facts charged and stated the facts charged by both the Defendant and his/her defense counsel with his/her statement, etc., it is difficult to deem that the procedural right under the above provision has been substantially guaranteed.

Nevertheless, solely for the reasons indicated in its holding, the lower court erred by misapprehending the legal doctrine on Article 72 of the Criminal Procedure Act, which determined that the decision to issue the second detention warrant was lawful, deeming the Defendant as the procedural right under Article 72 of the Criminal Procedure Act was substantially guaranteed.

3. Therefore, the order of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)