The case holding that the court below's disposition of violation of Acts and subordinate statutes was committed after the defendant requested the appointment of a state appointed defense counsel with evidence attached that he/she is a person with a disability of grade 4 in spine, who is a national basic livelihood recipient.

The case holding that the court below's decision to dismiss the above claim is erroneous in violation of law, since there is sufficient room to acknowledge that the defendant is unable to appoint a defense counsel due to poverty, and there is no other circumstance to determine otherwise on the record, barring any special circumstance, the court below's decision to appoint a defense counsel should have been made and the defense counsel should have participated in the trial of a public trial, and the court below's decision to dismiss the above claim was made after the defendant was present at the public trial.

Article 33(2) of the Criminal Procedure Act, Articles 17(3) and 17-2 of the Regulation on Criminal Procedure

Supreme Court Decision 99Do3650 Delivered on October 26, 1999, Supreme Court Decision 2001Do1294 Delivered on April 27, 2001

Defendant

Defendant

Seoul Northern District Court Decision 2010No1311 Decided December 10, 2010

The judgment of the court below is reversed, and the case is remanded to the Seoul Northern District Court Panel Division.

We examine the grounds of appeal.

Article 33(2) of the Criminal Procedure Act (hereinafter “the Act”) provides that “Where a defendant is unable to appoint a defense counsel due to poverty or any other reason, the court shall appoint a defense counsel if requested by the defendant.” Article 17(3) of the Regulation on Criminal Procedure provides that when a request for the appointment of a defense counsel is made pursuant to Article 33(2) of the Act, a defense counsel shall be appointed without delay, and Article 17-2 provides that “Where the defendant requests the appointment of a defense counsel pursuant to Article 33(2) of the Act, the defendant shall submit explanatory materials.”

According to the records, on September 10, 201, prior to the commencement of the first trial date of the court below, the defendant requested the court below to appoint a state appointed defense counsel on the ground of poverty as stipulated in Article 33(2) of the Act in writing, along with supporting documents that he/she is a person with disabilities in spine (verte) and is a national basic livelihood recipient. However, the court below decided to dismiss the defendant's request for appointment of a state appointed defense counsel on September 13, 2010 and delivered the original copy of the above decision to the defendant on September 17, 2010. The court below can find the fact that the court below made the decision at the end of the trial while the defendant was present only

However, according to the evidence, such as the National Basic Living Security Benefit Certificate, etc. submitted by the defendant requesting the appointment of a public defender, there is sufficient room to acknowledge that the defendant is unable to appoint a defense counsel due to poverty, and there is no other circumstance to determine otherwise on the records. If there are such circumstances, the court below should have decided to appoint a public defender and have the appointed defense counsel participate in the trial, unless there are special circumstances. However, as long as the court below did not do so and subsequently proceed with the trial, the court below erred in the misapprehension of the above provisions of the Criminal Procedure Act, which resulted in preventing the defendant from exercising an effective defense right by receiving the assistance of a public defender, thereby affecting the judgment (see, e.g., Supreme Court Decision 2001Do1294, Apr. 27, 2001).

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)