[1] The case affirming the judgment below which acknowledged the State's liability for compensation on the ground that the act of refusal of justice, etc. was unlawful as it infringed upon the defense counsel Gap's right to inspect and copy the warrant of arrest, in case where Gap's attorney Gap's attorney Gap's attorney-at-law's attorney-law's attorney-at-law's attorney-law's attorney-at-law's attorney-law's attorney-at-law's attorney-law's attorney's attorney-at-law's attorney

[2] Whether a defense counsel may apply for a copying of a warrant of arrest to an investigative agency through a deceased person, such as an employee (affirmative), and whether an employee entrusted by a defense counsel is required to obtain prior permission from a prosecutor in accordance with Article 4(3) of the "Rules on the Methods of Perusal and Copy of Case Records, Fees, etc.," which are the Ordinance of the Ministry of Justice enacted by the delegation provision of Article 11 of the Public Prosecutor's Office Act, in order for an employee entrusted by the defense counsel to apply for

[1] Article 2 (1) of the State Compensation Act, Article 214-2 (1) of the Criminal Procedure Act, Article 101 of the Regulation on Criminal Procedure / [2] Article 214-2 (1) of the Criminal Procedure Act, Article 11 of the Prosecutors' Office Act, Article 101 of the Regulation on Criminal Procedure, Article 4 (3) of the "Rules on the Methods of Inspection and Copying of Case Records, Fees, etc." (Article 631 of the Ordinance of the Ministry of Justice enacted on January 7, 200

[2] Supreme Court Decision 2003Du9794 Decided November 25, 2004 (Gong2006Ha, 1171) decided May 25, 2006

Plaintiff (Attorney Cho Dong-hwan, Counsel for the plaintiff-appellant)

Korea

Seoul Southern District Court Decision 2009Na7446 Decided February 4, 2010

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Article 101 of the Regulation on Criminal Procedure provides, “The suspect for whom a warrant of detention has been requested or who has been arrested or detained, his defense counsel, legal representative, spouse, lineal relatives, siblings, live-in partner, or employer may request the public prosecutor, judicial police officer, or junior administrative officer, etc. who keeps the documents of emergency arrest, the letter of arrest of flagrant offender, the warrant of arrest, the warrant of detention or the request thereof, to issue

According to the reasoning of the judgment below, the court below revealed the following facts: (i) Nonparty 1 was arrested on the charge of obstruction of the performance of official duties at the front of the candlelight Assembly on February 24, 2009 on the charge of Nonparty 2, who did not directly ask Nonparty 1 to appoint an attorney at the Seoul Southern Police Station; (ii) Nonparty 1 was arrested on the charge of Nonparty 2’s arrest warrant on the charge of Nonparty 1’s refusal to appoint an attorney at the Seoul Southern Police Station; (iii) Nonparty 2 did not ask for an interview with his attorney at the Seoul Southern Police Station around 17:30, on the charge of Nonparty 2’s refusal to appoint an attorney at the time of Nonparty 2’s request for the warrant of arrest; and (iv) Nonparty 2 did not ask Nonparty 1 to appoint an attorney at the time of Nonparty 1’s request for an interview with his/her attorney at the Seoul Southern Police Station; and (v) the Plaintiff did not present his/her order to appoint an attorney at the bar on the charge of Nonparty 2.

Based on the facts acknowledged as above, the court below determined that the plaintiff submitted an application for interview with the law firm to which the plaintiff belongs, the name and seal affixed to the plaintiff while meeting the non-party 1 on the preceding day, the non-party 2, who was copying the warrant of arrest of the non-party 1, was a legal counsel appointed by the plaintiff as a legal counsel of the non-party 1, and the non-party 2 was a legal counsel of the non-party 2, and the police officer in charge was aware of the fact that the plaintiff was delegated the copy of the warrant of arrest to the non-party 2, who is an attorney of the court below, as a legal counsel of the plaintiff. If a separate document, such as the power of attorney, was required to confirm whether it was delegated, the court below should explain the reason and request the plaintiff to supplement the document by facsimile, but the refusal of the request by the plaintiff was unlawful since it violated the plaintiff's right to claim for the perusal and copy of the warrant of arrest, which is a legal counsel.

The above judgment of the court below is just, and there is no violation of law as alleged in the grounds of appeal. The ground of appeal is without merit.

2. The appellant asserts to the effect that it is unlawful for an employee of the counsel to apply for a copy of arrest warrant without the permission of the prosecutor, since it is unlawful for the counsel to apply for a copy of arrest warrant without the permission of the prosecutor, since it is unlawful for the counsel to refuse to request for a copy of arrest warrant without the permission.

However, the above assertion cannot be a legitimate ground of appeal against the judgment of the court below because it was a new argument that was made before the court of final appeal without the assertion in the court below, and it cannot be a legitimate ground of appeal against the judgment of the court below. In addition, since the request for copying documents such as arrest warrant or the receipt of a certified copy thereof is merely a mere factual act and its contents are not different from the delegation of the applicant authority, and thus, it does not necessarily need to be directly exercised by the defense counsel. Since there is no provision restricting that only the applicant authority can make a request for copying, there is no ground that the defense counsel can make a request for copying, etc. with a warrant of arrest, it is possible to make a request through a private person, such as the employee, etc. on behalf of the applicant authority. Meanwhile, Article 4 (3) of the above Rule provides that "the attorney or the defense counsel may allow the applicant, employee, or other person to peruse and copy the records of the case. In this case, the above rule was enacted based on the delegation provisions of Article 11 of the Public Prosecutor's Office Act, but it does not have any provision regarding the above provision 10 4.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)