도로교통법위반(음주측정거부)
The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 3,000,000.
The above fine shall not be paid by the defendant.
1. The main point of the grounds for appeal is that the lower court’s punishment (five million won penalty) is too unreasonable.
2. Ex officio determination
A. Article 33(2) of the Criminal Procedure Act (hereinafter “Act”) provides that “Where the defendant is unable to appoint a defense counsel due to poverty or any other reason, the court shall appoint a defense counsel upon the defendant’s request.”
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Article 17 (3) of the Regulation on Criminal Procedure provides that in case where a defendant requests the selection of a national defense counsel under Article 33 (2) of the Act, the court shall, without delay, appoint a national defense counsel, and Article 17-2 of the Regulation on Criminal Procedure provides that in case of a request for the appointment of a national defense counsel under Article 33 (2) of the Act, the defendant shall submit explanatory materials.
If there is sufficient room to recognize that the defendant is unable to appoint a defense counsel due to poverty based on the documents, such as a certificate of basic living security recipient, submitted by the defendant, and there is no other circumstance to determine otherwise on the records, the court below shall make a decision to appoint a defense counsel from the national line and have the selected defense counsel participate in the trial, except in extenuating circumstances.
However, if the court below did not do so and subsequently proceed with the trial, the court below erred in violation of the Criminal Procedure Act regarding the selection of the national defense counsel and thereby causing the defendant to exercise effective defense rights with the assistance of the national defense counsel, thereby adversely affecting the conclusion of the judgment (see Supreme Court Decision 2010Do18103, Mar. 24, 201). (B) The records reveal that ① the defendant supports two spouse and two children in de facto marital relationship with the defendant being physically handicapped immediately after receiving a summary order as to the facts charged in this case, and proceeds at auction for the real estate in which the defendant resides.