Article 33(1) and (3) of the Criminal Procedure Act provides that the court shall appoint a defense counsel ex officio. In the case falling under each subparagraph of paragraph (1), if there is no defense counsel, the court shall appoint a defense counsel. On the other hand, Article 33(3) provides that the court shall appoint a defense counsel within the scope not against the explicit will of the defendant, in discretion, only when it is deemed necessary for the protection of rights in consideration of the age, intelligence, level of education, etc. of the defendant.

Therefore, unless it falls under any of the subparagraphs of Article 33 (1) of the Criminal Procedure Act, a court may not appoint a national defense counsel if it is not recognized as necessary for the protection of rights, and even if a trial is conducted without the selection of a national defense counsel without the appointment of a national defense counsel, it shall be deemed that the defendant's defense has been infringed and affected the judgment.

If not recognized, there is a violation of Article 33 (3) of the Criminal Procedure Act.

In light of the records, the court of first instance (see, e.g., Supreme Court Decision 2013Do1886, May 9, 2013). The court of first instance (see, e.g., Supreme Court Decision 2013Do1886, May 9, 201) acknowledged the facts charged by the Defendant and concluded a pleading through the examination of evidence, and then appealed for the reason that the Defendant is subject to a fine of KRW 6 million, and both the Defendant and the prosecutor appealed for the reason that the sentencing was unfair. The court of first instance (see, e.g., Supreme Court Decision 201Do1554, May 9, 201) concluded a trial without the national defense counsel and concluded the pleadings, and then

Examining these facts in light of the legal principles as seen earlier, it is desirable for the lower court to determine and take measures with respect to which the court held the court’s statutory detention while rendering imprisonment with labor after conducting a trial without a national defense counsel.

Supreme Court Decision 201Hun-Ga45 Decided November 10, 2016.