Where the court shall appoint a state appointed defense counsel at the request of the defendant or ex officio, or where the court of first instance appoints a state appointed defense counsel at the request of the defendant or ex officio and proceedings are in progress, measures taken by the appellate court in relation

Article 33 of the Criminal Procedure Act provides for the duty to appoint a public defender, ex officio or upon request of the defendant, in certain cases, so that the defendant's right to receive assistance of counsel guaranteed under Article 12 of the Constitution can be effectively realized in the trial proceedings (paragraphs 1 and 2), while the court shall appoint a public defender within the extent not against the explicit intent of the defendant in cases where it is deemed necessary to protect his/her right in consideration of the age, intelligence, education level, etc. of the defendant (Paragraph 3). In light of the constitutional right to receive assistance of counsel and the purport of the public defender system under the Criminal Procedure Act, the court shall immediately appoint a public defender in cases where the defendant requests the appointment of a public defender in accordance with Article 33(2) or (3) of the Criminal Procedure Act after examining the records of trial and supporting materials ex officio or ex officio in cases where it is unclear solely based on the records of trial, and the court shall decide whether to appoint a public defender in the first trial by the hearing of the court or ex officio in cases where the defendant is appointed and the public defender is in progress.

Article 12 of the Constitution of the Republic of Korea; Article 33(1), (2), and (3) of the Criminal Procedure Act; Articles 6, 7, and 8 of the established rules on public defenders;

Defendant

Defendant

Suwon District Court Decision 2012No1783 decided December 18, 2012

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

The grounds of appeal are examined.

1. On January 23, 201, the facts charged in the instant case reveal that the Defendant did not take the (vehicle No. 2 omitted) cargo truck (vehicle No. 3 omitted), which had been parked in the air through the air at the flood of the central hospital, at the time of shocking the freight truck of the (vehicle No. 3 omitted), at the time of shocking the freight truck of the (vehicle No. 3 omitted), on January 31, 201, at around 15:45, the household distance of the Suwon-si household at Suwon-si, the Defendant: (a) had the right line on the front of the household street of the Suwon-si household; (b) had been on the right line from the air room to the air through the air, and (c) had been released from the victim Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”) who was a insurance company that subscribed to the said vehicle at the time of the accident, and submitted the written agreement to the victim for the treatment of the cargo under the name of the victim.

2. The court below acknowledged the following circumstances based on the evidence adopted, namely, ① the first instance court and Nonindicted Party 2, who was the driver of Lone Star Engine, stated in the facts charged, stated that the Defendant was not on board the truck immediately after the accident; ② the first instance court and Nonindicted Party 2, who was the witness of the court below, stated in the facts charged, stated that “the Defendant was not on board the truck immediately after the accident,” and confirmed the cargo vehicle immediately after the accident; and subsequently, the Defendant was on the spot for two hours after the accident, but did not appear on the part of the Defendant; ② the witness of the first instance court, who was the driver of the freight truck stated in the facts charged, stated that “the Defendant did not have on board the cargo vehicle at the time of the accident”; ③ Nonindicted Party 4, who was dispatched to the scene at the time of the accident, did not appear on the ground of “the Defendant’s testimony at the time of the accident at the time of the accident at the time of the accident at the time of the accident at the time of the accident,” and found the Defendant’s witness’s witness’s testimony to the following facts.

3. However, it is difficult to accept such a measure by the lower court for the following reasons.

A. Article 308 of the Criminal Procedure Act, which provides for the principle of free evaluation of evidence, provides that the probative value of evidence shall be free to be determined by the judge’s arbitrary judgment as to whether it is appropriate to discover substantial truth, does not allow a judge’s arbitrary judgment. Thus, a judge at a fact-finding court, who has a full power to determine evidence, shall take into account the perception obtained in the trial proceedings and the evidence examined when conducting fact-finding without any remainder. Furthermore, while the probative value of evidence is left to a judge’s free judgment, the said judgment must be consistent with logical and empirical rules, and the degree of the formation of a conviction to be found guilty in a criminal trial ought to be sufficient enough to have reasonable doubt. If there is no evidence of probative value that leads the judge to have a reasonable doubt that the facts charged are true, even if there is suspicion of guilt against the defendant (see, e.g., Supreme Court Decisions 2005Do8675, Mar. 9, 2006; 2009Do58585).

B. In light of the records, the Defendant consistently stated to the effect that he was able to walk the cargo vehicle on the cargo vehicle in order to transport furnitures with each other and was prepared to start with the vehicle, and that he was able to take charge of the mixed freight tank (the intermediary was unable to carry the locked driver's seat). Upon the instant accident, the Defendant examined the shock level of the cargo vehicle with Nonindicted 2, etc., who was unloaded from the cargo vehicle on the cargo vehicle in question, and then did not divide any conversations with Nonindicted 2, 3, and 4 in relation to the instant accident.

C. First, we examine the statements of Nonindicted 3 and Nonindicted 4 employed by Nonindicted Company 1 as evidence of conviction.

기록에 의하면 공소외 3은 사고 직후 20m 이상 전진한 상태에서 렉스턴 차량을 정차한 뒤 사고현장으로 돌아왔음을 알 수 있는데, 피고인의 진술에 따르면 그때는 이미 피고인이 포터 화물차에서 내린 뒤일 것이므로, 피고인이 포터 화물차 조수석에 앉아 있거나 차에서 내리는 모습을 보지 못하였다는 공소외 3의 진술은 피고인의 진술과 모순되지 아니한다. 공소외 3과 공소외 4는 이 사건 사고현장에서 피고인을 본 기억이 없다는 취지로 진술하였으나, ① 공소외 3과 공소외 4는 이 사건 사고 이후 1년이 훨씬 지난 때에 제1심법정에서 피고인을 만나게 되었는데, 이 사건 사고 당시 피고인과 별다른 대화를 나누지 아니하고 얼굴만 잠시 보았을 뿐이라면 법정에서 피고인을 알아보기는 쉽지 아니하였을 것으로 보이는 점, ② 특히 공소외 4의 경우 그동안 수많은 교통사고 현장에서 사고에 관련된 여러 사람들을 만났을 터인데 그와 같이 오랜 시간이 흐른 뒤에 자신의 보험사 고객도 아닌 피고인을 기억해 내기란 쉽지 아니하였을 것으로 보이는 점, ③ 공소외 5 주식회사(이하 ‘공소외 5 회사’라 한다)에서 발급한 ‘콜센터 사고접수 확인서’에는 피고인의 동생 공소외 6이 이 사건 사고 발생 약 30분 뒤 공소외 5 회사 콜센터에 ‘정차 중인 포터 화물차에 차량 접촉사고가 발생하였고, 당시 조수석에 사람이 타고 있었다’는 내용의 사고신고를 하였다고 기재되어 있고, 공소외 5 회사 직원인 제1심증인 공소외 7은 사고신고를 받고 이 사건 사고현장에 출동하여 그곳에서 피고인을 만나 신고 내용을 확인하였다는 취지로 진술하였으며, 이와 같은 증거들의 신빙성은 배척하기가 쉽지 아니한데, 이에 따르면 피고인이 이 사건 사고 당시 실제로 현장에 있었을 가능성이 상당히 높은 점, ④ 공소외 3은 이 사건 사고 당시 포터 화물차의 전조등이 켜져 있었던 것으로 기억하고 있고, 2명의 남자가 사고현장 부근에 쌓인 눈을 치우면서 ‘우리도 보험회사 불러야 되나’라는 말을 하는 것을 들었다는 취지로 진술하였는데, 이는 이 사건 사고 당시 포터 화물차의 시동을 켠 상태에서 포터 화물차 조수석에 누워 있었고 사고 직후 매제와 함께 사고현장 부근에 쌓인 눈을 치웠다는 피고인의 진술에 부합하는 점 등에 비추어 보면, 공소외 3과 공소외 4가 이 사건 사고현장에서 피고인을 보았음에도 그 사실을 제대로 기억하지 못하였다고 볼 여지가 적지 아니하다.

D. Next, we examine the statements made by Non-Indicted 2 of the Lone Star driver.

Non-Indicted 2 made a statement to the effect that the instant accident took place, but did not have any way, on the other hand, it is difficult to view that Non-Indicted 2’s statement to the effect that he was able to properly see the appearance of the Poter cargo vehicle in the short time when he could not control his own vehicle due to a traffic accident, and that the content of Non-Indicted 2’s statement to that effect is consistent with the general rule of experience, barring any special circumstances. Furthermore, according to the Defendant’s statement, the Defendant was able to take place in the top of the Poter truck at the time of the collision, and it is doubtful whether Non-Indicted 2 was able to properly check whether he was able to take on the top of the Poter truck

In addition, Nonindicted 2 made a statement to the effect that: (a) immediately after the accident occurred, Nonindicted 2 had confirmed the cargo vehicle set off in Skex for two hours at the scene of the accident, but failed to view the Defendant; and (b) there was no resistance with respect to the cargo vehicle; (c) Nonindicted 2, if the Defendant immediately after the accident occurred in the vehicle, could not be seen as the Defendant’s appearance in the vehicle in question; and (d) as seen earlier, the Defendant could have been in the accident site at the time of the accident; (c) Nonindicted 2’s statement is inconsistent with this; (d) Nonindicted 2 could not accurately be held liable for the collision with the cargo vehicle in question or for damages incurred by Nonindicted 2; and (e) Nonindicted 2 could have made a statement to the Defendant that he could not be aware of the fact that he did not have any other responsibility with respect to the accident in question; and (e) Nonindicted 2 could have made a statement to the Defendant at the scene of the accident in question after the accident in question.

E. Examining these circumstances in light of the aforementioned legal principles, the evidence alone adopted by the court below cannot be readily concluded that there was proof to the extent that there was no reasonable doubt as to the facts charged of this case. Nevertheless, the court below’s decision that found the Defendant guilty of the facts charged of this case erred by violating logical and empirical rules and exceeding the bounds of the principle of free evaluation of evidence. The allegation in the grounds of appeal assigning this error is with merit.

4. Article 33 of the Criminal Procedure Act provides for the duty of the court to appoint a public defender ex officio or upon request of the accused to effectively realize the right to assistance of counsel guaranteed by the accused under Article 12 of the Constitution in the trial proceedings (Article 1 and 2), while the court shall appoint a public defender to the extent that does not go against the accused’s express intent even in a case where it is deemed necessary for the protection of rights in consideration of the age, intelligence, education level, etc. of the accused (Article 3(3)). In light of the constitutional right to receive assistance of counsel and the purport of the public defender system under the Criminal Procedure Act, the court shall immediately appoint a public defender where the accused requests the appointment of a public defender under Article 33(2) or (3) of the Criminal Procedure Act after examining the records of trial or ex officio or where it is acknowledged that the accused falls under Article 33(2) or (3) of the Criminal Procedure Act after examining the records of trial, and where it is unclear solely with the materials indicated in the records of trial, it is desirable for the court to decide whether to appoint a public defender.

According to the records, the Defendant requested formal trial against the summary order on the ground that the facts charged in the instant case cannot be acknowledged, and the first instance court appointed a public defender ex officio to proceed with the trial and rendered a judgment of innocence, and the Defendant appealed therefrom, and the Defendant requested the lower court to appoint a public defender on the ground of poverty. However, the lower court immediately dismissed the claim on the day when the written request for appointment of a public defender was submitted. The lower court, after opening the first trial date, adopted a witness who was requested by a public prosecutor and adopted the witness who was examined, and concluded the pleading after the examination, and concluded the pleading. The Defendant did not receive any assistance of counsel, and the lower court determined the Defendant guilty by changing

In light of the above provisions, the court below should have considered that the defendant is not immediately dismissed the defendant's request for appointment of a state appointed defense counsel in such a case, but should have taken into account the situation where the defendant is under trial without the assistance of counsel, by selecting a state appointed defense counsel, unless there is any special change in circumstances. Nevertheless, the court below immediately dismissed the defendant's request for appointment of a state appointed defense counsel without the assistance of counsel, and proceeded with a trial without the counsel. This decision of the court below pointed out that the defendant's request for appointment of a state appointed defense counsel was not under the progress of a desirable trial without the consent of the defense counsel

5. Therefore, 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 So-young (Presiding Justice)