[2] The case holding that the court below's decision which held the trial without taking the procedure of appointing a state appointed defense counsel is erroneous in the misapprehension of legal principle, where the defendant is not a second-class visually disabled person and is not a braille ( braille)

[2] The case holding that the court below's decision which held a trial without taking the procedure of appointing a state appointed defense counsel is erroneous in the misapprehension of legal principles, where the defendant is not a second-class visually disabled person, even though he suffers from considerable difficulty in accessing printed information.

1. Article 33 of the Criminal Procedure Act provides for the duty of the court to appoint a state appointed defense counsel ex officio or upon request in certain cases so that the defendant's right to have assistance of counsel guaranteed under Article 12 of the Constitution can be effectively realized in the trial proceedings (Article 1 and 2). In cases where it is deemed necessary to protect his/her right in consideration of the defendant's age, intelligence, education level, etc., the court shall appoint a state appointed defense counsel to the extent that does not go against the defendant's explicit intent

Meanwhile, according to the Criminal Procedure Act, the principle of oral argument is in principle (Article 275-3), but the defendant has the right to receive a copy of indictment in order to prepare for exercising his/her right to defense on the date of trial (Article 266), and the defendant has the right to request perusal and copy of the relevant documents or evidence or protocol of trial (Articles 35(1) and 55(1)). However, in cases of the visually disabled who are deemed to have difficulty in exercising his/her right under the Criminal Procedure Act, it is highly likely that the defendant can not exercise his/her right to defense effectively by failing to properly confirm the relevant documents or protocol of trial while the lawsuit is pending. Thus, in light of the right to receive counsel under the above Constitution, the purpose of the system of a public defender under the Criminal Procedure Act, and the current criminal procedure practice where related documents, etc. are not provided during the lawsuit prepared in braille, the court should select a public defender within the scope of the defendant's right to defense without any violation of Article 33(3) of the Criminal Procedure Act.

2. According to the records, if the defendant is not a hearing-class 2 visually disabled person, he can find the fact that the defendant experienced considerable difficulty in accessing printed information. Thus, the court must confirm the defendant's age, intelligence, level of visual disability including the degree of education, etc. by applying Article 3(3) of the Criminal Procedure Act mutatis mutandis, and when it is deemed necessary to protect the right, notify the court that it may not want the appointment of a public defender pursuant to Article 17 of the Rules on Criminal Procedure, and have taken the procedure of selecting a public defender to the extent that it does not go against the defendant's explicit intent.

Nevertheless, the court below did not take such measures and proceeded with the trial. Accordingly, there is a lot of room for seeing that the court below erred by misapprehending the legal principles on Article 33(3) of the Criminal Procedure Act and failing to exhaust all necessary deliberations, thereby affecting the conclusion of the judgment.

3. Therefore, without examining the grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)