[사기미수·사문서위조·위조사문서행사·위증교사][미간행]
In a case where there is an error in violation of Article 31 subparagraph 1 of the Attorney-at-Law Act which the defendant appointed by himself, whether the defendant's right to assistance of counsel was infringed or the litigation procedure is invalid (negative)
Article 31 subparagraph 1 of the Attorney-at-Law Act, Article 12 (4) of the Constitution, Article 327 of the Criminal Procedure Act
Defendant 1 and one other
Prosecutor
Jeonju District Court Decision 2008No849 Decided October 10, 2008
The appeal is dismissed.
We examine the grounds of appeal.
Article 31 subparagraph 1 of the Attorney-at-Law Act provides that "no attorney-at-law shall perform his duties in relation to cases in which one of the parties concerned has accepted an award and the other party concerned has consented to such acceptance." In light of the legislative purport of the above provision, it is reasonable to view that the same attorney-at-law shall also be prohibited from performing his duties, such as conducting procedural acts in civil cases for the other party concerned who is a victim of a criminal case, and then later, he is appointed as a counsel for the defendant in a criminal case that includes the same issue and conducts defense activities, etc. (see Supreme Court Decision 2004Do5951, Nov. 26, 2004).
Examining the facts duly confirmed by the court below in light of the above legal principles, it is reasonable to view that the act of defense, etc. by appointing the Defendants as the defense counsel in the first instance court of this case, which is a criminal trial on the crime of attempted lawsuit fraud against the non-indicted 1, etc. of the defendant 1 and the non-indicted 1 as the attorney of the non-indicted 4 in the loan case between the defendant 1 and the non-indicted 1, 2 and 3, violates Article 31 subparagraph 1 of the Attorney-at-Law Act.
However, despite the Defendants’ violation of Article 31 subparag. 1 of the Attorney-at-Law Act, even though the Defendants’ violation of the limitation on acceptance of cases by the attorney at the first instance court, barring any special circumstance in this case where the said attorney-at-law was appointed as a defense counsel, the Defendants’ rights to receive counsel due to such unlawful act was infringed or the litigation procedure becomes null and void. Therefore, the lower court’s conclusion maintaining the first instance court’s judgment is justifiable, and there is no error of law
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.
Justices Ahn Dai-hee (Presiding Justice)