CONTENTS
- 1. Citizen Participation Trial, What Were the Detailed Circumstances?
- - Citizen Participation Trial, the Relevant Statutes and Precedents?
- 2. Citizen Participation Trial, the Lower Courts' Determination?
- 3. Citizen Participation Trial, the Supreme Court's Determination?
- 4. Citizen Participation Trial, Daeryun's Strategy?
1. Citizen Participation Trial, What Were the Detailed Circumstances?
The circumstances of the citizen participation trial were as follows.
The defendant was Mr. A, who was indicted on a charge of fraud under the Act on Aggravated Punishment of Specific Economic Crimes (a Korean statute imposing aggravated punishment for economic crimes based on the amount involved, with no direct common-law equivalent). [ubc88uc5ed uac80ud1a0 ud544uc694: uc6d0ubb38uc758 u201cuac00uc2dcu201dub294 u201cuc0acuae30(fraud)u201duc758 uc624ud0c0ub85c ubcf4uc784; ubb38ub9e5(uc0acuae30 ud610uc758 uc778uc815)uc5d0 ub530ub77c fraudub85c ubc88uc5ed]
In 2011, Mr. A borrowed funds to purchase vehicles from the victim, Mr. B, telling him, “If you buy several cargo trucks and enter into a contract with a large company, you can generate profits of several million won.”
The funds that Mr. B handed over to Mr. A amounted to several billion won.
Mr. A, however, did not repay the borrowed money. Mr. B therefore filed a criminal complaint against Mr. A, and as the fraud charge was recognized, Mr. A was sent to trial.
Citizen Participation Trial, the Relevant Statutes and Precedents?
📌 Relevant Statutes
Article 156-5 of the Rules on Criminal Procedure (Examination of Evidence in the Appellate Court)
(1) Before commencing the procedure for the examination of evidence, the presiding judge shall notify the parties of the gist of the evidentiary relationships and the results of the examination of evidence at the first instance.
(2) The appellate court may examine a witness only in cases falling under any of the following subparagraphs.
1. Where there was no intent or gross negligence with respect to the failure to examine the witness at the first instance, and the application does not significantly delay the proceedings
2. Where the witness was examined at the first instance, but re-examination in the appellate court is deemed unavoidable owing to the discovery of important new evidence or for similar reasons
3. Where it is otherwise deemed indispensable for a determination on the merits of the appeal
📌 Relevant Precedent
“Where the jurors, after participating together in the entire process of fact-finding, including the examination of witnesses, returned a unanimous verdict of acquittal regarding the assessment of the evidence, such as the credibility of the witnesses’ statements, and the finding of facts, and that verdict was adopted as it stood because it conformed to the court’s own conviction, the first-instance court’s determination as to the assessment of evidence and the finding of facts reached through such a procedure needs to be accorded even greater respect, in light of the purport and spirit of the principle of substantial direct examination and the principle of trial-centered proceedings, unless, through a new examination of evidence in the appellate court, sufficient and persuasive prominent circumstances clearly contradicting that determination are shown.”(See Supreme Court Decision of March 25, 2010, 2009 Do 14065)
2. Citizen Participation Trial, the Lower Courts' Determination?
At the first instance, where the citizen participation trial was held, the defendant was acquitted.
At that time, all seven jurors who took part in the verdict chose ‘not guilty’, and the first-instance court reached the same conclusion.
The point was that there was no evidence other than the victim’s statement to support the claim that, at the time he borrowed the money, Mr. A had promised that he “would use it for the purpose of purchasing vehicles.”
Accordingly, the court explained that it was difficult to find it proven beyond a reasonable doubt that Mr. A had deceived the victim.
The appellate court’s determination, however, was different.
First, at the appellate stage, the prosecution amended the indictment.
It added content concerning the fact that Mr. A had received a final conviction for fraud against another victim and that he had not used the borrowed money to purchase cargo trucks.
The appellate court also conducted an additional examination of witnesses, including the victim and the victim’s spouse.
As a result, the appellate court held that it could sufficiently find Mr. A guilty of the charge of having deceived the victim and taken the money, reversed the first-instance judgment, and imposed on Mr. A an actual custodial sentence.
It added that “even if the jurors returned a unanimous verdict of acquittal, where there are special circumstances suggesting that the first-instance court’s determination was clearly erroneous, that verdict should not be accepted as it stands.”
3. Citizen Participation Trial, the Supreme Court's Determination?
The Supreme Court’s view of the citizen participation trial differed from that of the appellate court.
It reversed the appellate judgment that had imposed an actual custodial sentence and remanded the case.
The Supreme Court explained that, where a unanimous verdict of acquittal was returned by the jurors at the first instance and that decision was adopted because it conformed to the court’s own conviction, a new examination of evidence in the appellate court must be conducted only on a very limited basis.
It pointed out that, if the appellate court readily overturns the first-instance determination by attaching great significance to circumstances that the first-instance court had already considered, to statements of similar import, or to incidental and peripheral circumstances that do not materially affect the determination of guilt or innocence, the result may be that the weight of the jurors’ unanimous opinion is not respected, in contravention of the legal principle set out above.
The witnesses newly adopted at the appellate stage were witnesses whom the prosecution could readily have applied to examine at the first instance as well, but no examination took place; and the victim, Mr. B, had likewise completed the witness examination procedure at the first instance. The Supreme Court determined that this could hardly be regarded as an unavoidable case.
The Supreme Court further added, “The prosecutor withdrew the application to examine one witness, who was not a key figure, at the first instance, and then, after Mr. A was acquitted, applied again to examine that witness in the court below,” and “in this process, the prosecutor submitted no material whatsoever as to whether there was a reason that made a new examination of evidence indispensable.”
4. Citizen Participation Trial, Daeryun's Strategy?
We have analyzed a Supreme Court decision to the effect that, where the jurors who took part in a citizen participation trial returned a unanimous verdict of acquittal, the appellate court should also respect that verdict absent any particular circumstances to the contrary.
It can be regarded as a significant decision in the sense that any additional examination of evidence to be conducted in the appellate court must be decided with great caution.
Under the citizen participation trial system, members of the public take part in criminal trials as jurors or reserve jurors; once selected as a juror, a person listens directly to the arguments of the defendant and defense counsel and, together with the other jurors, discusses an appropriate punishment before reaching a verdict.
In a citizen participation trial in particular, one must persuade not only the judges but also the jurors, so it is important to obtain the assistance of an attorney with substantial experience in such matters.
Daeryun Law Firm LLP operates a 🔗‘Criminal Group’ staffed by numerous attorneys with extensive experience in criminal litigation.
If you have any inquiries regarding criminal litigation procedures in general, including citizen participation trials, you are welcome to contact Daeryun Law Firm LLP at any time.
