[1] Where a defendant and a public defender did not submit a statement of grounds for appeal within the statutory period, but there is no reason attributable to the defendant on the failure of a public defender to submit the statement of grounds for appeal, measures to be taken by the appellate court. This legal principle applies likewise to a private defense counsel appointed by the defendant himself/herself before the appellate court revokes the appointment of a public defender and appoints a new public defender

[2] In a case where a minor defendant appealed against the judgment of the first instance and did not submit the statement of grounds for appeal, and the mother among the legal representatives of the defendant did not submit the written consent to the withdrawal of appeal, but the father did not submit the written consent to the withdrawal of appeal; although the court below appointed a public defender and did not submit the statement of grounds for appeal by the expiration date of the period for submission of the grounds for appeal, and the mother appointed a private defense counsel, the case holding that the court below dismissed the defendant's appeal immediately without having revoked the appointment of a public defense counsel and provided the private defense counsel with an opportunity to submit the statement of grounds for appeal

[1] Where a public defender appointed for the defendant fails to submit the statement of grounds for appeal within the deadline for submitting the statement of grounds for appeal, it shall be deemed that the court of appeals did not provide sufficient assistance required for the defendant. In such a case, if the appellate court dismisses the defendant's appeal pursuant to the main sentence of Article 361-4 (1) of the Criminal Procedure Act in the absence of any reason attributable to the defendant, it is against the constitutional purport that guarantees the defendant's right to have sufficient assistance from the public defender and stipulates the State's obligations to ensure this. Therefore, even if the defendant and the public defender fail to submit the statement of grounds for appeal within the statutory deadline, unless it is found that there is any reason attributable to the defendant for the failure of the public defender to submit the statement of grounds for appeal, the court of appeals shall revoke the appointment of the public defender and appoint a new public defender, and have the new counsel submit the statement of grounds for appeal for the defendant within the period of time under Article 361-3 (1) of the Criminal Procedure Act, and such legal principle shall equally apply to the case where the defendant voluntarily appoints the defense

[2] The case holding that the court below erred by misapprehending the legal principles as to the right of a public defender and the right of the defendant to appeal, where the defendant, who is a minor, filed an appeal against the judgment of the court of first instance, but failed to submit the appellate brief, and the mother of the defendant did not submit the written consent to the withdrawal of appeal; although the court below appointed a public defender and did not submit the appellate brief by the expiration date of the period for submission of the appellate brief, the defendant's mother appointed a private defense counsel, since the defendant did not submit the written consent of the father who is the legal counsel, although the defendant did not submit the written withdrawal of appeal within the period for submission of the appellate brief, and therefore the public defender did not submit the appellate brief within the statutory period, even though the defendant, who is required to have the legal counsel, submitted the written withdrawal of appeal within the period for submission of the appellate brief without the legal representative's consent, does not constitute a cause attributable to the defendant.

[1] Article 12(4) of the Constitution of the Republic of Korea; Articles 361-3(1) and 361-4(1) of the Criminal Procedure Act / [2] Article 12(4) of the Constitution of the Republic of Korea; Articles 33(1), 350, 361-3(1), and 361-4(1) of the Criminal Procedure Act; Article 153(1) of the Regulation on Criminal Procedure

[1] Supreme Court en banc Order 2009Mo1044 Decided February 16, 2012 (Gong2012Sang, 480)

Defendant

Defendant

Law Firm LLC (Lisung, Attorneys O Dong-dong et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2018No3529 decided March 22, 2019

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

If a public defender appointed for the defendant fails to submit the statement of grounds for appeal within the deadline for submitting the statement of grounds for appeal, it shall be deemed that the court of appeals did not provide sufficient assistance required for the defendant, and in such a case, if the appeal of the defendant is dismissed under the main sentence of Article 361-4(1) of the Criminal Procedure Act, unless there is any reason attributable to the defendant, it is contrary to the purport of the Constitution that guarantees the defendant's right to have sufficient assistance from the public defender and stipulates the State's obligation to do so. Therefore, even if the defendant and public defender did not submit the statement of grounds for appeal within the statutory deadline, the court of appeals shall revoke the appointment of the public defender and appoint a new public defender to have the new counsel submit the statement of grounds for appeal for the defendant within the period of Article 361-3(1) of the Criminal Procedure Act (see, e.g., Supreme Court en banc Order 2009Mo1044, Feb. 16, 2012).

According to the records, the following facts are revealed: ① Defendant and a minor public prosecutor appealed against the judgment of the first instance; ② Defendant was notified of the receipt of the notification of the receipt of the trial records on December 27, 2018 and submitted the statement of the grounds for appeal on January 2, 2019; ③ Defendant’s legal representative failed to submit the statement of grounds for appeal on January 7, 2019; ③ Defendant’s mother did not submit the written consent of the withdrawal of appeal; but his father did not submit the written consent; ④ Defendant appointed a public defense counsel on January 18, 2019; the public defense counsel did not submit the written notification of the grounds for appeal by February 7, 2019; ⑤ Defendant’s mother appointed a private defense counsel on February 8, 2019, which is the expiration date of the period for submission of the grounds for appeal; ② Defendant did not submit the notification of the receipt of the grounds for appeal to Defendant on February 25, 2019. The lower court revoked the appointment of the previous public defense counsel, but did not notify a private defense counsel.

In light of the above progress, the court below dismissed the defendant's appeal on the ground that the defendant and mother who submitted the written withdrawal of appeal and written consent are partially responsible for the failure of the public defender to submit the grounds for appeal, and it does not need to send the notification of the receipt of the trial records again to the private defense counsel, and the grounds

We examine the judgment of the court below. According to Article 350 of the Criminal Procedure Act and Article 153(1) of the Regulation on Criminal Procedure, when a defendant who has a legal representative withdraws an appeal, the legal representative shall obtain the consent of the legal representative and submit the written consent thereto. Although a minor defendant submitted the written withdrawal of appeal, the defendant's appeal has no consent of the father of the defendant who is the legal representative, and thus, the defendant did not submit the written statement of appeal within the statutory period. Therefore, even though the defendant who is required to have the legal representative assisted the legal representative, the public defender did not submit the written withdrawal of appeal within the statutory period. As such, it cannot be deemed that the defendant is responsible for the failure of the public defender to submit the written statement of appeal within the statutory period. Accordingly, the court below should revoke the appointment of a public defender in accordance with the above legal principle and give the private defense counsel an opportunity to submit the written statement of appeal within the period under Article 361-3(1) of the Criminal Procedure Act

Nevertheless, the lower court immediately dismissed the Defendant’s appeal without taking such measures on the grounds that there are some causes attributable to the Defendant for failure to submit the statement of grounds for appeal. In so doing, the lower court erred by misapprehending the legal principles on the right to assistance of a public defender under the Constitution and the Criminal Procedure Act. The Defendant’s grounds for appeal assigning this error

Therefore, 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 Park Jung-hwa (Presiding Justice)