【Holding】
[1] Significance of "deliberation" as the process of forming the will of the court when a collegiate panel of the court exercises its adjudicative power / Significance and limits of the formlessness and autonomy regarding the content, method, etc. of deliberation
[2] Whether the judges constituting a criminal appellate collegiate panel may, before the trial proceedings are substantially concluded, exchange views and deliberate on the basis of the statement of grounds for appeal and the reply brief and thereby provisionally form the will of the court (affirmative), and whether, when pronouncing judgment on the date the pleadings are closed, they may agree to adopt the provisionally formed will of the court as its final will and pronounce judgment (affirmative) / Whether, in such cases, a final deliberation process determining the court's final will regarding the conclusion of the criminal judgment must be undertaken (affirmative) / Whether the judges of the criminal appellate collegiate panel may autonomously determine the form of such final deliberation process (affirmative) / Whether the trial proceedings become unlawful where such final deliberation process is absent or the deliberation procedure has become a mere formality (affirmative)
[3] In a case where the defendant, indicted on charges including violation of the Road Traffic Act (drunk driving (officially “driving while intoxicated”)), admitted all of the charged facts at the first instance and was sentenced to one year of imprisonment, after which both the defendant and the prosecutor appealed on the ground of unreasonable sentencing, and the lower court, having completed the hearing on the grounds of appeal and having conducted the examination of the defendant and heard the final opinions, closed the pleadings and pronounced a judgment dismissing the appeals on the same day, the Court held that the lower court's proceedings contained no error of violating Article 27(1) of the Constitution and Article 66 of the Court Organization Act and thereby infringing the right to be tried by deliberation so as to affect the judgment
【Summary of Decision】
[1] Unlike where a single judge exercises adjudicative power, when a collegiate panel exercises adjudicative power, the three judges constituting the panel go through deliberation, that is, the process of ascertaining the facts at issue in a specific case and interpreting and applying the relevant law to reach a conclusion, in order to form the will of the court as an adjudicative body beyond the opinions of independent individual judges. Deliberation is an essential process by which the members of the panel, who have different experiences and values, cooperate to freely exchange views and deliberate and thereby form the will of the court as one organic whole.
As to the method of deliberation, etc., the law provides that deliberations shall not be made public so that the judges constituting the panel may freely exchange views and deliberate on a specific case at any time in the course of deliberation (Article 65 of the Court Organization Act), while providing no separate provisions other than Article 66 of the Court Organization Act concerning the principle of majority rule, etc. This allows the judges constituting the panel to autonomously decide on detailed matters, such as the content and method of deliberation, which are essential to the exercise of judicial power, by comprehensively considering the subject and nature of the deliberation and the progress of the litigation. Together with the principle of confidentiality of deliberation, such formlessness and autonomy regarding the content, method, etc. of deliberation serve as the foundation for guaranteeing the right to a fair trial under Article 27 of the Constitution and judicial independence under Article 103 of the Constitution.
Meanwhile, Article 267-2(1) of the Criminal Procedure Act declares the principle of concentrated hearing by providing that "hearings on trial dates shall be concentrated." Reflecting this, the Criminal Procedure Act provides that, in principle, a criminal judgment shall be pronounced on the date on which the pleadings are closed, that a separate date for pronouncement shall be set only where there are special circumstances, and that, where judgment is pronounced on the date the pleadings are closed, the written judgment may be prepared after pronouncement (Article 318-4 of the Criminal Procedure Act). Furthermore, although the presiding judge directs the proceedings on trial dates (Article 279 of the Criminal Procedure Act), with respect to matters within the authority of the court in directing the proceedings on trial dates, the judges constituting the panel must form a will as an adjudicative body; accordingly, it is inevitable to some extent that deliberation proceeds in various forms during the trial, taking into account the subject and nature of the deliberation and the progress of the litigation. In this way, the formlessness and autonomy of deliberation also serve as an essential means of implementing the principle of concentrated hearing under the Criminal Procedure Act.
It goes without saying that such formlessness and autonomy of deliberation must also be realized within the fundamental principles of criminal procedure, namely the principle of trial-centeredness, the principle of oral pleadings, and the principle of substantive direct examination. Since reducing deliberation to a mere formality essentially infringes the right to a fair trial based on these principles, the judges constituting the panel must, after the trial proceedings contemplated by the Criminal Procedure Act, such as the examination of evidence in court, the examination of the defendant, the prosecutor's statement of opinion on the facts and the application of law, and the final statements of the defendant and defense counsel, have been substantially completed and the pleadings have been closed, conduct a final deliberation forming the will of the court regarding the conclusion of the criminal judgment. If the conclusion of a criminal judgment was not formed through final deliberation on the basis of the conviction formed from the hearing in court, it fails to comply with the principles of the Criminal Procedure Act, such as trial-centeredness, oral pleadings, and direct examination, and is in principle unlawful.
[2] Considering the ex post review character of criminal appellate proceedings together with the principle of concentrated hearing contemplated by the Criminal Procedure Act and the formlessness and autonomy of deliberation, in criminal appellate proceedings, even before the relevant trial proceedings are substantially concluded, the judges constituting the panel may at any time freely exchange views and deliberate on the facts and the interpretation and application of law regarding the grounds falling within the scope of review of the appellate court on the basis of the statement of grounds for appeal and the reply brief, and thereby provisionally form the will of the court as one organic whole. Furthermore, where judgment is pronounced on the date the pleadings are closed, the judges constituting the criminal appellate panel may, while provisionally forming the will of the court before the closing of the pleadings, examine all litigation materials presented in court in the course of the ongoing criminal proceedings, confirm that there is no change to the provisionally formed will of the court, and agree to adopt it as the court's final will and pronounce judgment.
Even in such cases, however, the final deliberation on the conclusion of the criminal judgment must be based on the conviction formed from the hearing in court; therefore, the judges of a criminal appellate panel pronouncing judgment on the date the pleadings are closed must undergo a final deliberation process that determines the court's final will regarding the conclusion of the criminal judgment by reflecting the results of the hearing conducted in court on the basis of the will of the court provisionally formed before the closing of the pleadings. In particular, where, after the provisional deliberation, important matters concerning new facts or the interpretation and application of law relating to the constitution of the crime, sentencing factors, etc. that had not previously been examined are newly presented on the trial date, the significance of such final deliberation process becomes even greater. In this regard, it is desirable to briefly recess after closing the pleadings and before pronouncing judgment in order to undergo a separate final deliberation process; however, in light of the nature of deliberation, the essence of which lies in formlessness and autonomy, such a separate process is not formally required, and the judges constituting the criminal appellate panel may determine it autonomously in accordance with the progress of the litigation and the characteristics of the individual case.
However, since the formlessness and autonomy of deliberation have limits, where, in pronouncing a criminal judgment on the date the pleadings are closed, there is no final deliberation process whatsoever that determines the court's final will regarding the conclusion of the criminal judgment by reflecting the results of the hearing in court on the basis of the provisionally formed will of the court, or where, in light of the progress and content of the hearing on the grounds falling within the scope of review of the criminal appellate court and the content of the final judgment thereon, the deliberation procedure is assessed as having become a mere formality to the extent of undermining public trust in the criminal justice system, such proceedings may be regarded as unlawful trial proceedings in light of the principles of trial-centeredness, oral pleadings, and direct examination.
[3] In a case where the defendant, indicted on charges including violation of the Road Traffic Act (drunk driving), admitted all of the charged facts at the first instance and was sentenced to one year of imprisonment, after which both the defendant and the prosecutor appealed on the ground of unreasonable sentencing, and the lower court, as the appellate court, received the statements of grounds for appeal and sentencing materials, examined the grounds of appeal of the prosecutor and the defendant on the second trial date, completed the examination of the defendant and the final statements on the third trial date, closed the pleadings, and pronounced a judgment dismissing the appeals on the same day, the Court held as follows: the defendant asserted only unreasonable sentencing as a ground of appeal, which was presented through oral pleadings together with the prosecutor's ground of appeal of unreasonable sentencing and directly examined in court; in the examination of the defendant conducted on the date the pleadings were closed, only mitigating circumstances supporting the existing grounds of appeal were examined, and no important matters concerning new facts or the interpretation and application of law relating to the constitution of the crime, sentencing factors, etc. were newly presented; the written judgment, electronically signed by the judges constituting the lower court, clearly and reasonably stated the reasons for dismissing the appeals of the prosecutor and the defendant, whereas there is no material from which it can be concluded that the lower court pronounced the criminal judgment without undergoing any final deliberation process leading to such conclusion. Considering these circumstances comprehensively, it is difficult to regard the lower court as having pronounced judgment without undergoing the final deliberation process determining the court's final will regarding the conclusion of the criminal judgment, or as a case in which the deliberation procedure had become a mere formality to the extent of undermining public trust in the criminal justice system; therefore, the lower court's proceedings contained no error of violating Article 27(1) of the Constitution and Article 66 of the Court Organization Act and thereby infringing the right to be tried by deliberation so as to affect the judgment.
【Referenced Statutes】
[1] Articles 27 and 103 of the Constitution; Articles 7(5), 32, 40, 40-7, 65, and 66 of the Court Organization Act [2] Articles 12(1), 27, and 103 of the Constitution; Articles 37(1), 267-2(1), 275-3, 361-3, 361-4, 361-5, and 364(1) and (2) of the Criminal Procedure Act [3] Articles 12(1), 27, and 103 of the Constitution; Article 66 of the Court Organization Act; Articles 37(1), 267-2(1), 275-3, 361-3, 361-4, 361-5, and 364(1) and (2) of the Criminal Procedure Act
(Source: Supreme Court Decision 2025Do18361, July 16, 2026 | Judicial Information Disclosure Portal, Precedents)
2026. 10. 14. · By Attorney Dongwoo Shin
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