제1심의 소송행위가 모두 무효인 경우 항소법원의 조치

In a criminal trial, there are instances where the entire set of procedural actions in the first instance trial may be deemed invalid. Such procedural situations arise when the first instance court either omits a specific procedural action or fails to meet procedural requirements, despite these being essential for the validity of individual procedural actions in the trial. This paper addresses whether such defects can be remedied when there is a uniform cause of invalidity in each procedural action in the trial, and what measures the appellate court should take upon recognizing such defects. The author's conclusions can be summarized as follows: First, if the first instance court i) conducted a trial and judgment without a defense attorney in cases where a defense attorney is mandatory, ii) proceeded with trial procedures in the absence of the defendant without meeting the requirements for a trial in absentia, or iii) tried the case in absentia without delivering a copy of the indictment, all procedural actions in the first instance trial are invalid. In these cases, because essential parts of the constitutional rights are violated, there is no room for remedying the defect despite the balancing between the principle of truth and the principle of due process. Therefore, the author agrees with the Supreme Court's stance of not recognizing the remedy of such defects regardless of whether the right to object has been waived. However, in these cases, it is appropriate to remand the case to the first instance court by analogously applying Article 366 of the Criminal Procedure Act to preserve the defendant's benefit of the instance. The approach of overturning and rendering new judgment by the appellate court, as seen in precedent, cannot be considered an appropriate measure. Secondly, in cases subject to participatory trials, i) proceeding with the ordinary procedure without verifying defendant’s intention to have a participatory trial, or ii) conducting a regular trial without making a decision to exclude a participatory trial despite a request for it, is illegal, and all procedural actions in such a first instance trial are invalid. These constitute significant defects that cannot be remedied by waiving the right to object. Therefore, the Supreme Court's precedent allowing the appellate procedure to proceed if the defendant does not object in the former case, or the lower court decisions applying the same standard to the latter case, cannot be deemed appropriate. In such instances, the appellate court must always issue a judgment to remand the case.