Where the first instance trial is conducted without a defense counsel in a case requiring counsel, the validity of the litigation conducted by the first instance court (=effective) and the measures to be taken by the appellate court.

Articles 33 and 282 of the Criminal Procedure Act

Supreme Court Decision 99Do915 delivered on April 23, 1999 (Gong1995Sang, 2010), Supreme Court Decision 2002Do1639 Delivered on June 14, 2002, Supreme Court Decision 2002Do2544 Delivered on September 24, 2002

Defendant

Defendant

Law Firm Professor-ro, Attorneys Park Han-young et al.

Changwon District Court Decision 2010No2787 decided May 13, 2011

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

The grounds of appeal are examined.

1. We first examine the violation of Acts and subordinate statutes regarding the legal proceedings.

A. In cases falling under a case requiring attorney-at-law under Article 282 of the Criminal Procedure Act, if the first instance trial proceedings have been conducted without a defense counsel, and the examination of evidence and the examination of the accused have been conducted. In such a case, the appellate court shall reverse the judgment of the first instance which was unlawful, and render a new judgment based on the result of the trial, such as the examination of evidence and statement at the appellate court, etc. (see, e.g., Supreme Court Decisions 94Do2347, Apr. 25, 1995; 2002Do1639, Jun. 14, 2002; 2002Do2544, Sept. 24, 2002).

B. (1) Of the facts charged against the Defendant, the charge of violation of the Punishment of Violences, etc. Act (injury by a group, deadly weapon, etc.) constitutes a requisite attorney-at-law under Article 282 of the Criminal Procedure Act, since the statutory penalty is imprisonment for a limited term of not less than three years under Articles 3(1), 2(1), and 257(1) of the Criminal Act.

However, according to the records, in the first instance court, it can be known that the court did not appoint a defense counsel for the defendant without the appointment of a defense counsel and conducted an examination of evidence, such as the examination of evidence and the examination of the defendant. Thus, the result of examination of evidence and the statement of the defendant in the first instance court shall not be admitted as evidence of guilt.

(2) Meanwhile, while proceeding the trial at the court on the first trial date with the involvement of counsel, the court below notified the procedure for examining evidence submitted by the prosecutor, including the statement of opinions by the defendant and his defense counsel, and the examination of the defendant by the prosecutor and defense counsel without going through a new examination, and hear the opinions of the persons involved in the litigation at the court, and then complete the trial at the court only without going through the examination by the prosecutor and defense counsel.

Then, the court below reversed the judgment of the court of first instance on the ground that the first instance court, ex officio, revised the case without a defense counsel in this case where it is an attorney-at-law case and tried the case, and subsequently accepted the summary of the evidence of the criminal facts in the corresponding column of the judgment of the court of first instance as it is, and determined that the court of first instance can fully recognize this part of the facts charged according to the evidence duly adopted and investigated by the court of first instance as to the defendant's assertion that the defendant's assertion that he was not guilty of any violation of the Punishment of Violences, etc. Act (

C. In light of the legal principles as seen earlier, the lower court erred by misapprehending the legal principles on the validity of procedural acts conducted without a defense counsel in a case requiring a necessary attorney-at-law to render a judgment, without newly examining evidence and conducting procedural acts, such as the examination of evidence and the examination of the accused, and making a statement of the accused as evidence of conviction.

2. Therefore, without further proceeding to decide on the remaining grounds of appeal by the Defendant, 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 Kim Nung-hwan (Presiding Justice)