Prosecutor's written sentencing opinion under the trial-centred principle

1. 01Question

   Where a prosecutor states no sentencing opinion at the trial hearing and submits it in writing after the close of argument, is that written sentencing opinion itself an irregularity in the procedure that affected the judgment, so that the trial-centred principle was hollowed out and the defendant's right of defence and counsel's right of defence essentially infringed?

2. 02Holding

   The prosecutor's sentencing opinion forms part of the statement on fact and the application of law under Article 302 of the Criminal Procedure Act, is a procedural act of argument, and so in principle must be given orally in open court under Article 37(1) and Article 275-3. Submitting it in writing after the close of argument is not desirable. But the opinion does not bind the court, and the written form alone is not an irregularity that affected the judgment unless, on the circumstances of its submission and its content, the trial-centred principle governing the defendant's last statement was hollowed out or the rights of defence essentially infringed. The Supreme Court held that this threshold was not reached on these facts and dismissed the appeal.

   Summary of the holding, verbatim

   그러나 검사가 양형 의견을 서면으로 제출한 경위, 시기 및 방법, 그 의견의 구체적인 내용이나 근거, 피고인이 행사할 수 있는 방어권의 기회 및 내용 등에 비추어 그 서면 구형으로 인하여 피고인의 최후진술 절차에 관한 공판중심주의가 형해화되거나 피고인의 방어권, 변호인의 변호권이 본질적으로 침해되는 정도에 이르렀다고 볼 수 없는 한, 서면 구형을 거쳤다는 이유만으로 판결에 영향을 미친 위법이 있다고는 볼 수 없다.

   Unofficial English translation

   However, in light of the circumstances, timing, and method by which the prosecutor submitted the sentencing opinion in writing, the specific content or grounds of that opinion, the opportunity for and content of the right of defense that the defendant may exercise, and the like, so long as it cannot be regarded as reaching the degree at which, by reason of that written sentencing recommendation, the principle of trial-centeredness as to the defendant's final statement procedure is rendered a mere formality, or the defendant's right of defense or the defense counsel's right of defense is essentially infringed, it cannot be regarded as there being any error affecting the judgment merely by reason of having gone through a written sentencing recommendation.

3. 03Disposition

   Dismissed Stated in the decision

   상고를 기각한다.

   Unofficial English translation

   The appeal is dismissed.

4. 04Form of the test

   Circumstances weighed Stated in the decision

   그러나 검사가 양형 의견을 서면으로 제출한 경위, 시기 및 방법, 그 의견의 구체적인 내용이나 근거, 피고인이 행사할 수 있는 방어권의 기회 및 내용 등에 비추어 그 서면 구형으로 인하여 피고인의 최후진술 절차에 관한 공판중심주의가 형해화되거나 피고인의 방어권, 변호인의 변호권이 본질적으로 침해되는 정도에 이르렀다고 볼 수 없는 한, 서면 구형을 거쳤다는 이유만으로 판결에 영향을 미친 위법이 있다고는 볼 수 없다.

   Unofficial English translation

   However, in light of the circumstances, timing, and method by which the prosecutor submitted the sentencing opinion in writing, the specific content or grounds of that opinion, the opportunity for and content of the right of defense that the defendant may exercise, and the like, so long as it cannot be regarded as reaching the degree at which, by reason of that written sentencing recommendation, the principle of trial-centeredness as to the defendant's final statement procedure is rendered a mere formality, or the defendant's right of defense or the defense counsel's right of defense is essentially infringed, it cannot be regarded as there being any error affecting the judgment merely by reason of having gone through a written sentencing recommendation.

5. 05Factors

   • 검사가 양형 의견을 서면으로 제출한 경위, 시기 및 방법
   • 그 의견의 구체적인 내용이나 근거
   • 피고인이 행사할 수 있는 방어권의 기회 및 내용

   Unofficial English translation

   • The circumstances, timing, and method by which the prosecutor submitted the sentencing opinion in writing

   • The specific content or grounds of that opinion

   • The opportunity for and content of the right of defense that the defendant may exercise

6. 06Relation to precedent

   Follows earlier decisions Stated in the decision

   대법원 1985. 7. 23. 선고 85도1003 판결(공1985, 1218)

   Unofficial English translation

   Supreme Court Decision 85Do1003 decided July 23, 1985 (Gong 1985, 1218)

   Decisions referred to

   대법원 1985. 7. 23. 선고 85도1003 판결(공1985, 1218), 대법원 2001. 11. 30. 선고 2001도5225 판결(공2002상, 241), 대법원 2004. 3. 26. 선고 2004도659 판결, 대법원 2005. 5. 26. 선고 2004도1925 판결(공2005하, 1085)

7. 07Burden of proof

   Not addressed Not in the decision

8. 08Open question and revisit condition

   If the written sentencing opinion introduces aggravating circumstances that appeared in no earlier hearing, does the written form alone still fall short of an infringement of the rights of defence?

   A later decision holding that a written sentencing opinion is structurally incompatible with the trial-centred principle would unsettle this reading, as would a statutory amendment requiring the prosecutor's sentencing opinion under Article 302 of the Criminal Procedure Act to be given orally. A record showing that the written opinion differed from the earlier oral opinion or from the sentence imposed would also require this entry to be read again.

Read 2026-10-24 · Cross-read 2026-10-24. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.

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