Whether Article 15(2) of the Regulations on Criminal Procedure violates Article 15(2) in cases where co-defendants who are not co-defendants in a conflict of interest (affirmative) and the standard for determining whether there is a conflict of interest among co-defendants

Articles 282 and 283 of the Criminal Procedure Act, Article 15(2) of the Regulation on Criminal Procedure

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Jong-soo et al., Counsel for plaintiff-appellant)

Defendant

Defendant

Attorney Ha Sung-chul

Daegu District Court Decision 2014No988 Decided September 26, 2014

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Daegu District Court Panel Division.

The grounds of appeal are examined.

1. In the case where co-defendants, who do not have an accomplice relation, consider the facts charged as being in itself and the arguments favorable for a defendant against another defendant bring an unfavorable result to the other defendant, there is conflict of interests among co-defendants. Thus, in the case where the same public defender who appointed co-defendants as to the co-defendants together with the co-defendants, it is in violation of Article 15(2) of the Regulation on Criminal Procedure. In addition, the determination of whether there is a conflict of interest between such co-defendants should not be made comprehensively considering all the specific circumstances that would have an effect on the case of determining punishment against the co-defendants (see Supreme Court Decision 200Do4398, Nov. 24,

2. According to the records, the summary of the facts charged against the co-defendant of the judgment of the court below (hereinafter "joint defendant") is that "the co-defendant was injured by the defendant's face at around 01:30 on November 21, 2012 when the co-defendant was living together with the defendant at the house of co-defendant's house, causing injury to the defendant by drinking, and assaulting the defendant by making the kitchen knife, which is a dangerous thing, several times with the defendant's head by having the kitchen knife and knife, etc." The summary of the facts charged against the defendant is that "the defendant was fighting against the defendant's body at the same time and at the same place against the defendant's above, and he was injured by the co-defendant with the right side of the kitchenbuckbbbbbbs and knife's chest," and the court below appointed a public defender for the defendant and the public defender and made a judgment following it.

Examining these facts in light of the legal principles as seen earlier, although the Defendant and Co-Defendant did not have co-defendant relations, each of the facts charged is the other party to the crime committed against each other with the content that they injured each other. As such, the victim of the crime committed against each other is the other party to the charge, the argument favorable to one Defendant naturally results in unfavorable consequences as to the circumstances, such as whether he/she was guilty of the facts charged against another Defendant, or the criminal nature of such Defendant, and the nature of the crime, and it is obvious that

Nevertheless, the court below erred in the misapprehension of the law that affected the conclusion of the judgment by allowing the defendant to exercise effective defense right with the assistance of a public defender in violation of Article 15 (2) of the Regulation on Criminal Procedure concerning the Litigation Procedure, in the process of appointing the same public defender for the defendant and the co-defendant and completing the trial through the pleading by the public defender. The ground of appeal pointing this out is

3. Therefore, without examining the remaining grounds of appeal, we reverse the part of the judgment of the court below regarding the defendant, and remand this part of the case 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 Kim So-young (Presiding Justice)