In the case requiring a defense counsel, where the appellate court appoints a public defender, notifies the defendant who is the appellant and his/her defense counsel of the receipt of the notification of the trial records, and the appellate court revokes the appointment of a public defender due to the appointment of a private defense counsel, whether the newly appointed private defense counsel should notify the same again (negative), and whether the initial date of the submission period for the statement of grounds for appeal (=the date the public defense counsel or the defendant receives the notification of the receipt of the notification of the trial records)

[Majority Opinion] The Criminal Procedure Act provides that a defense counsel shall also be notified of the receipt of the notification of the trial record when the appellate court appoints a defense counsel before the defendant who is the appellant receives the notification of the trial record (Article 361-2(2)). If a defense counsel is appointed after the defendant receives the notification of the notification of the trial record, it does not need to notify the defense counsel again. The same applies where the appellate court appoints a defense counsel from the case requiring a defense counsel and then revokes the appointment of a defense counsel as the defendant appoints a defense counsel, and the appellate court revokes the appointment of a defense counsel. In such

Meanwhile, Article 156-2(3) of the Regulation on Criminal Procedure provides that if a public defender is replaced due to reasons not attributable to the defendant within the deadline for submitting the statement of grounds for appeal, the public defender shall also be notified of the receipt of the notification of the trial records. This provision shall not apply or analogically to the private defense counsel newly appointed

In the end, unless there is any explicit ground provision by amending the Criminal Procedure Act or its rules, the court of appeals does not have any obligation to again notify the private defense counsel of the receipt of the trial records in the case requiring the interpretation of the current laws and regulations, where the appellate court appoints a public defense counsel and notifies the defendant and the public defense counsel of the receipt of the trial records.

[Dissenting Opinion by Justice Jo Hee-de, Justice Jo Hee-de, Justice Park Jung-hwa, Justice Kim Seon-soo, and Justice Lee Dong-won] Considering the significance of the right to receive assistance of counsel under the Constitution, the purport of the public defender system under the Criminal Procedure Act, the nature of the necessary attorney proposal, and the importance of the submission of the statement of grounds for appeal in the criminal appellate trial proceedings, etc., if the appellate court revokes ex officio the decision to appoint a public defender as the defendant and public defender during the period for submitting the statement of grounds for appeal during which the defendant and public defender did not submit the statement of grounds for appeal while the defendant and public defender did not ex officio revoke the decision to appoint a public defender during the period for submitting the statement of grounds for appeal, the appellate court should consider that the new public defender should notify the public defender of the receipt of the notification

According to the Majority Opinion, a newly appointed private defense counsel shall prepare and submit the statement of grounds for appeal during the period other than the period in which the public defender has not filed the statement of grounds for appeal and the period in which the public defender has not yet filed the statement of grounds for appeal. This is different from imposing liability on the defendant or the private defense counsel for the period in which the public defender has not filed the statement of grounds for appeal, even if the public defender appointed by the court for the defendant receives the notification of grounds for appeal, which is not different from imposing liability on the defendant or the private defense counsel for the period in which the defendant has not filed the statement of grounds

Article 156-2(3) of the Regulation on Criminal Procedure may apply mutatis mutandis to cases where a public defender is replaced due to a cause not attributable to the defendant in a case requiring a necessary attorney-at-law case. This conforms to the purport of the Constitution and the Criminal Procedure Act to ensure sufficient assistance of the defense counsel for the defendant in a case requiring a lawyer.

Articles 12(4) and 108 of the Constitution of the Republic of Korea; Articles 30, 33(1), 282, 283, 357, 361-2(1) and (2), 361-3(1), 361-4(1), and 364(1) of the Criminal Procedure Act; Articles 1, 18(1)1, 156-2(1) and (3), and 164 of the Rules on Criminal Procedure

Supreme Court Decision 200Do4694 Decided December 22, 2000 (Gong2001Sang, 404) Supreme Court Decision 2006Do547 Decided December 7, 2006, Supreme Court Decision 2006Do5547 Decided March 29, 2007, Supreme Court Decision 2008Do11486 Decided February 12, 2009 (Gong2009Sang, 361)

Defendant

Defendant

Law Firm Chungcheong, Attorneys Park Jong-soo et al.

Seoul High Court Order 2015No872 dated July 3, 2015

The reappeal is dismissed.

The grounds of re-appeal (the defendant's defense counsel submitted a petition of appeal to the court below's order, but the method of appeal to the court below's order is re-appeal, so the above petition of appeal is considered as

1. Case history and key issue

A. The Re-Appellant appealed after having been convicted by the first instance court, but did not state the grounds for appeal in the petition of appeal. On March 10, 2015, the lower court appointed a state appointed defense counsel to the Defendant in this case, which is a requisite attorney-at-law under Article 33(1)6 of the Criminal Procedure Act, and notified a state appointed defense counsel on the 12th day of the same month, and the Defendant-at-law of the fact that the appointment of a state appointed defense counsel

B. While the Re-Appellant and the public defender did not submit the statement of grounds for appeal, the Re-Appellant appointed a private defense counsel on March 23, 2015. The lower court revoked the decision to appoint a public defense counsel on March 24, 2015, and did not notify the private defense counsel of the receipt of the notification. The private defense counsel filed the statement of grounds for appeal with the lower court on May

C. On July 3, 2015, the lower court dismissed the appeal filed by the re-appellant by its ruling pursuant to Article 361-4(1) of the Criminal Procedure Act. The grounds for appeal filed after one month or more, counting from the date the appellate brief was received to the Re-Appellant or the previous public defender, and there were no grounds for ex officio investigation in the first instance judgment.

D. The Re-Appellant asserted that the court below sent a notification of the receipt of trial records to a private defense counsel and should have calculated the deadline for submitting the appellate brief based on the date of service of the notification.

E. The instant case is a requisite attorney-at-law, and the appellate court already issued a notification of the receipt of the trial record to the Defendant and the public defender, but the appointment of a public defender was revoked as the Defendant appointed a private defense counsel within the period for submission of the appellate brief while the Defendant and the public defense counsel did not submit the appellate brief. In such a case, the key issue

2. Whether a private defense counsel appointed after receipt of the notification of the receipt of the trial record shall receive the notification again;

A. The Criminal Procedure Act provides that a defense counsel shall also be notified of the receipt of the notification of the trial record when the appellate court appoints a defense counsel before the appellant receives the notification of the receipt of the trial record (Article 361-2(2)). If a defense counsel is appointed after the defendant receives the notification of the notification of the trial record, it does not need to give the same notification again to the defense counsel. This applies to a case where the appellate court appoints a defense counsel from the case requiring a defense counsel and then the defendant appoints a defense counsel, and then the appellate court revokes the appointment of a defense counsel as the defendant appoints a defense counsel. In such a case, the period for submitting the appellate brief must be calculated from the date the public defender or the defendant receives the notification of the trial record (see

Meanwhile, Article 156-2(3) of the Regulation on Criminal Procedure provides that if a public defender is replaced due to reasons not attributable to the defendant within the deadline for submitting the statement of grounds for appeal, the public defender shall also be notified of the receipt of the notification of the trial records. This provision shall not apply or analogically to the private defense counsel newly appointed

The following reasons are examined in detail.

B. Whether the appellant or his/her defense counsel is obliged to submit the statement of grounds of appeal within a given period, or if the appellant or his/her defense counsel fails to submit the statement of grounds of appeal within the given period, the decision to dismiss the appeal is basically a matter of legislative discretion that the legislator decides by taking into account the structure and nature of

The Criminal Procedure Act grants the right to appeal to a party to a criminal trial (Article 357), imposes an obligation to submit a statement of grounds of appeal (Article 361-3), and provides that a decision to dismiss an appeal, which is a formal trial, shall be rendered without making any decision on the merits in a case where the person fails to submit a statement of grounds of appeal within a given period (Article 361-4(1)). This is to ensure the balanced and prompt and active operation of the appellate court judgment, along with the guarantee of the human rights of the defendant. If the party fails to comply with the statutory period for submitting the statement of grounds of appeal, the purpose of the system to submit the statement of grounds of appeal, which is to determine the object of the appellate court to be tried through the submission of the statement of grounds of appeal, and to realize a prompt and smooth and smooth appellate court judgment, is to be clear. However, in light of the purpose of the system for submitting the statement of grounds of appeal, the public interest, including prompt and active operation of the appellate court trial, pursued by the above provision, is unreasonable compared with the party’s private interest and interests.

C. On the other hand, the appointment of a public defender is an act of trial by the court, while the appointment of a private defense counsel takes place between the defendant and the person who has the right to appoint the defense counsel (Article 30 of the Criminal Procedure Act).

The Criminal Procedure Act and the Regulation on Criminal Procedure separate between a private defense counsel and a public defense counsel. In certain cases, the court shall appoint a public defense counsel ex officio or upon the defendant’s request (Article 33 of the Criminal Procedure Act). If a defense counsel fails to appear without a defense counsel, a new public defense counsel shall be appointed ex officio (Articles 282, 283, and 370 of the Criminal Procedure Act). Even after the appointment of a public defense counsel, the court takes charge of the affairs such as cancellation of the appointment, resignation permission, supervision, etc. (Articles 18 through 21 of the Regulation on Criminal Procedure). Furthermore, the State’s duty to guarantee the defendant’s right to receive assistance is not merely a mere appointment of a public defense counsel in the criminal procedure, but also includes the duties of supervision and procedural measures necessary for the defendant to receive substantial assistance from the public defense counsel (see, e.g., Supreme Court en banc Order 2009Mo1044, Feb. 16, 2012).

D. The notification of the receipt of a trial record is the starting point for the submission period of the statement of grounds for appeal, and the subject should be clear. The Criminal Procedure Act and the Regulation on Criminal Procedure provide that the appellate court should notify the notification of the receipt of the trial record only when a private defense counsel is appointed before the notification of the receipt of the trial record of the defendant (Article 361-2(2) of the Criminal Procedure Act) and the Regulation on Criminal Procedure does not provide that the notification should be made again to the private defense counsel appointed after the notification of the receipt of the trial record of the defendant. On the other hand, in addition to Article 361-2(2) of the Criminal Procedure Act and Article 156-2 of the Regulation on Criminal Procedure, a public defense counsel should notify

Article 361-2(2) of the Criminal Procedure Act, which provides for the notification of the receipt of trial records to a defense counsel, is newly established in 1961 and kept until now. However, Article 156-2(2) of the Regulation on Criminal Procedure, which provides for the notification of the receipt of trial records to a defense counsel, has been successively established in order from 1996. Article 156-2(1) of the Regulation on Criminal Procedure provides for the obligation to appoint a defense counsel and to notify the defense counsel of the receipt of trial records from the necessary attorney under Article 33(1) of the Act. Article 156-2(1) of the Regulation on Criminal Procedure provides for the notification of the appointment of a defense counsel and the receipt of trial records to the defense counsel under Article 1441 of the Supreme Court Regulations, which is newly established on December 3, 1996. Article 156-2(2) of the Regulation on Criminal Procedure newly established by Supreme Court Regulation No. 2013, Mar. 23, 2006>

As seen above, the Criminal Procedure Act and the Regulation on Criminal Procedure clearly separate between a private defense counsel and a public defense counsel concerning the receipt of the trial records. Even if the appellate court issued a notification of the receipt of the trial records to the defendant and the public defense counsel and appointed a new private defense counsel, there is no ground for the notification of the new notification of the receipt of the trial records to the relevant private defense counsel. Therefore, if the private defense counsel did not submit the statement of grounds for appeal even after the date of receipt of the notification of the trial records by the

E. Meanwhile, Article 156-2(3) of the Regulation on Criminal Procedure that provides that if a public defender is replaced due to a reason not attributable to the defendant within the period for submitting the statement of grounds of appeal, Article 156-2(3) of the said Regulation shall also be extended or analogically applied to a private defense counsel newly appointed, as follows

(1) Considering the characteristics of the provisions of the litigation procedure that ensure the clarity and stability of the criminal procedure and the difference between the public defender and the private defense counsel in relation to the notification of the receipt of the trial record, which serves as the basis for whether the statutory period is complied with, it is reasonable to apply or apply by analogy Article 156-2(3) of the Regulation on Criminal Procedure

If the court does not neglect the duty to guarantee the right to assistance of a defense counsel by delaying the appointment of a defense counsel against the defendant in the case requiring a defense counsel without any justifiable reason, there is no room for the defendant, etc. to incur the duty to manage and supervise the court in the process of appointing a private defense counsel according to the delegation contract under the private law. Thus, there is no reason to expand or apply the provision on the receipt of trial records to the

In the past, the Supreme Court had determined that Article 156-2 of the Regulation on Criminal Procedure related to a public defender should be applied mutatis mutandis to a private defense counsel (Supreme Court Decision 2000Do4694 Decided December 22, 2000, Supreme Court Decision 2008Do11486 Decided February 12, 2009, etc.). However, the case differs from the case in which the court had a duty to appoint a public defense counsel in a case where the court could have found the error of delaying the appointment of a public defense counsel without justifiable grounds, and the case in which the court fulfilled its duty to appoint a public defense counsel for the defendant.

Article 156-2(3) of the Regulation on Criminal Procedure assumes that a public defender is replaced for the reason that the defendant cannot be held responsible. In this case, the case does not constitute a case where a public defender is replaced for the reason that the defendant cannot be held responsible.

The instant case differs from the contents stipulated in Article 156-2(3) of the Regulation on Criminal Procedure, and there is no reason to apply the said provision to such a case. In this case, it is difficult to deem that there exists a “legal blank,” which is a premise for analogy, even in light of whether Article 156-2(3) of the Regulation on Criminal Procedure can be applied by analogy.

(2) There is no room for the theory that the defendant’s right to receive the assistance of a defense counsel should be fully guaranteed in the case requiring a defense counsel. However, if the exception is acknowledged on the grounds that the right to receive assistance of a defense counsel is sufficiently guaranteed even in the case in this case, there is no reason to treat the case where a private defense counsel is appointed from the beginning in the case requiring a defense counsel. As a result, the conclusion that a new notification of the receipt of a new notification of the trial record should be received by the defense counsel even if there is no explicit provision in the law even in cases where it is difficult to limit the scope, such as where the defendant was appointed a private defense counsel from the beginning, but the private defense counsel was replaced with another private defense counsel in the course of failing to submit the statement of grounds for appeal, or where a change between the public defense counsel and the private defense counsel is

(3) In a case where the appellate court has already notified the defendant and the public defender of the receipt of the trial record, and the defendant appoints a private defense counsel, the private defense counsel, which is a legal expert, can confirm the time when the defendant, etc. received the notification of the receipt of the trial record from the defendant and the public defender, and this constitutes a basic duty of the private defense counsel. In such a case, the private defense counsel, which is a private defense counsel, should be deemed to have known that the trial record is in an appellate trial. The private defense counsel, as a matter of course, must confirm the date when the defendant or the public defense counsel was notified of the receipt of the trial record and submit the statement

(4) Furthermore, the aforementioned expanded application or analogical application leads to the appointment of a private defense counsel after the notification of the receipt of the trial record regarding the public defense counsel, and the submission period for the statement of reasons for appeal can be extended accordingly. In order to intentionally delay the criminal procedure, there is a possibility that such defendant may abuse the notification system of the trial record and may also be contrary to equity in comparison with the defendant who has

(5) Article 164 of the Regulation on Criminal Procedure also applies mutatis mutandis to the procedure of final appeal. As such, the above problems may also arise in the procedure of final appeal. If Article 156-2 is expanded or analogically applied to a private defense counsel, it may bring about unexpected confusion in the operation of the appellate court or the final appeal.

F. Ultimately, inasmuch as the Criminal Procedure Act or its rules are amended and there is no explicit ground provision, the interpretation theory of the current law requires the presence of a defense counsel to appoint a public defender from the case requiring the appellate court to appoint the defendant and the public defender, and then revoke the appointment of a public defender following the appointment of a private defense counsel, the appellate court does not have a duty to again notify the private defense counsel

3. Resolution of the instant case

The lower court dismissed the Defendant’s appeal on the grounds that the period for submitting the appellate brief was calculated from the date on which the public defender or the Defendant received the notification of the receipt of the trial record, and that the lawful appellate brief was not submitted within the period for submitting the appellate brief, and the petition of appeal did not contain any indication of the grounds for appeal, and that there was no ground for ex officio investigation. Examining the record in light of the legal principles as seen earlier, the lower court’s measures are justifiable (as the person among the defense counsel of the instant appellate court was a defense counsel at the first instance court, it can be deemed that the content or progress of the instant case was well known). There

4. Conclusion

The reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion by Justice Jo Hee-de, Justice Cho Jae-sik, Justice Park Jung-hwa, Justice Kim Seon-soo, and Justice Lee Dong-won, a concurring opinion by Justice Kim Jae-hyung, and a concurrence with the dissenting opinion by Justice Lee Dong-won

5. Dissenting Opinion by Justice Jo Hee-de, Justice Cho Jae-chul, Justice Park Jung-hwa, Justice Kim Seon-soo, and Justice Lee Dong-won is as follows.

A. In light of the constitutional significance of the right to assistance of counsel, the purport of the public defender system under the Criminal Procedure Act, the necessary attorney proposal character, and the importance of the submission of the statement of grounds for appeal in the criminal trial proceedings, in a case requiring counsel under Article 33(1) of the Criminal Procedure Act, in a case where the appellate court issued a notification of the receipt of the trial record to the defendant and the public defender, but the defendant and the public defender revoked ex officio the decision to appoint the public defender within the period for submission of the statement of grounds for appeal as the defendant did not submit the statement of grounds for appeal, the appellate court should deem that the court of appeals should notify the newly appointed public defender of the receipt of the notification of the receipt of the trial record

In such a case, the Majority Opinion states that there is no need for a new notification of the receipt of a trial record to a private defense counsel newly appointed. For that reason, there is no explicit provision that the notification of the receipt of a new notification should be received, and that Article 156-2(3) of the Regulation on Criminal Procedure, which differs from the case, cannot be expanded or analogically applied to the instant case, and it is apprehended to abuse, such as intentional delay of litigation, etc., and in comparison with the case of a defendant who has no economic ability to appoint a private defense counsel, it is contrary to the equity and may lead

According to the Majority Opinion, a newly appointed private defense counsel shall prepare and submit the statement of grounds for appeal within the period other than the period in which a public defender has not filed the statement of grounds for appeal and the public defender has not yet filed the statement of grounds for appeal. This is different from imposing liability on a defendant or a private defense counsel for the period in which a public defender appointed by the court for the defendant has not filed the statement of grounds for appeal even when he/she received the notification of grounds for appeal, which is not different from imposing liability on the defendant or the private defense counsel for the period in which the public defender has not filed the statement of grounds for appeal. The Majority Opinion agrees with the need

(1) The main text of Article 12(4) of the Constitution provides that “any person who is arrested or detained shall have the right to prompt assistance of counsel.” In light of the principle of the rule of law and the principle of due process of law, etc. under the Constitution of the Republic of Korea, the right to receive assistance of counsel is naturally recognized not only for the arrested suspect and the accused, but also for the non-detained suspect and the accused (see Constitutional Court en banc Order 2000Hun-Ma138, Sept. 23, 2004). “The right to receive assistance of counsel” guaranteed under the Constitution refers to the right to have sufficient assistance of counsel (see Supreme Court Order 2003Mo402, Nov. 11, 2003).

(2) In criminal proceedings, there is a significant difference between the prosecutor’s attack power and the defendant’s defense power in order to realize the principle of party equality, the system to supplement the defendant’s defense power is a defense counsel system. As to the right to receive counsel’s defense, the Criminal Procedure Act provides that the court shall appoint a public defender ex officio when there is no defense counsel by designating cases falling under certain grounds as a requisite attorney (Article 33(1)). In addition, the requisite attorney’s request for public trial cannot be amended without a defense counsel. If a defense counsel fails to appear, the Act provides that a new public defender shall be appointed ex officio (Articles 282 and 283). Article 33(1) of the Criminal Procedure Act provides that the defendant’s right to receive a defense counsel shall be sufficiently guaranteed in the trial proceedings for necessary attorney-at-law. In particular, considering the defendant’s detention, age, intelligence, importance of the case, etc., it is more important to guarantee the defendant’s right to receive sufficient assistance in a case requiring counsel.

(3) According to Articles 361-2(1) and (2), 361-3(1), 361-4(1), and 364(1) of the Criminal Procedure Act, in a case where a defendant appealed, the criminal appellate court basically decides on the grounds for appeal included in the grounds for appeal filed by the defendant or his/her defense counsel within the statutory period. If a legitimate grounds for appeal are not filed within the statutory period, the criminal appellate court shall dismiss the defendant’s appeal in principle unless there are grounds for ex officio examination.

In light of the meaning and importance of the submission of the statement of grounds for appeal in the criminal trial proceedings, the right to the attorney-at-law's assistance to the defendant should be fully guaranteed not only in the trial proceedings but also in the process of preparing and submitting the statement of grounds for appeal.

In light of the above purport, the first sentence of Article 156-2(1) of the Regulation on Criminal Procedure provides that “if there is no defense counsel in the case requiring a defense counsel for the necessary defense counsel from Article 33(1)1 to 6 of the Act, the appellate court, upon receipt of the records, shall appoint a defense counsel without delay and shall notify the defense counsel of the receipt of the records.” Accordingly, the necessary counsel counsel shall receive the notification of the receipt of the trial record of the defendant and allow the defendant to prepare and submit the statement of grounds for appeal for the defendant for a certain legal period from the time when the defense counsel receives the notification of the receipt of the trial record separately from the notification of the trial record of the defendant. In addition, Article 156-2(3) of the Regulation on Criminal Procedure provides that “Where the decision to appoint a defense counsel is revoked for reasons not attributable to the defendant within the deadline for submitting the statement of grounds for appeal and the new counsel is appointed, the court shall notify the defense counsel of the receipt of the trial record.”

According to the Majority, a private defense counsel newly appointed by the previous public defense counsel included the period for submitting the appellate brief in the period for submitting the appellate brief of a private defense counsel newly appointed by the previous public defense counsel is de facto reduced. If there is no defense counsel in the case requiring a defense counsel, the court appoints a public defense counsel ex officio. Therefore, it is unreasonable for the Defendant to take the defendant at a disadvantage in the reduction of the period for submitting the appellate brief

(4) As pointed out in the Majority Opinion, there is no explicit provision that the previous decision of appointment of a public defender should be revoked and the notification of receipt of a trial record to the newly appointed private defense counsel, but no measure is permitted to guarantee the right to assistance of the defense counsel on the ground that there is no explicit provision. In the previous case, the Supreme Court has held that even if the court did not appoint a public defense counsel without any justifiable reason, the defendant voluntarily appointed a defense counsel between the defendant and the non-appointed public defense counsel, but such time does not have sufficient time to prepare and submit the statement of appeal for the defendant, the defendant's right to assistance of the defense counsel as stipulated in Article 156-2 of the Regulation on Criminal Procedure should be protected, on the ground that Article 156-2 of the Regulation on Criminal Procedure should also be applied to the private defense counsel, by applying the notification of the receipt of a trial record to the private defense counsel, the court shall give the defendant an opportunity to prepare and submit the statement of appeal for the defendant within the prescribed period from the date when the private defense counsel is notified (see Supreme Court Decision 2000Do4694, Dec. 28, 2019).

The issue is not formally whether Article 361-2 of the Criminal Procedure Act, Article 156-2(1), and Article 156-2(3) of the Regulation on Criminal Procedure, concerning the receipt of the notification of the receipt of a trial record, but rather, should be examined from a substantive point of view whether the right to receive counsel assistance is sufficiently guaranteed for the preparation and submission of the statement of grounds for appeal in the necessary attorney-at-law case. If the right to receive counsel is not sufficiently guaranteed by the language and text of the provision, it is reasonable to seek ways

Article 156-2(3) of the Regulation on Criminal Procedure assumes that a public defender is replaced for the reason that the defendant cannot be held responsible. Since the defendant voluntarily revokes the decision of appointment of a public defender by the court following the appointment of a private defense counsel, the majority opinion argues that Article 156-2(3) of the Regulation on Criminal Procedure cannot be analogically applied to this case, and that the defendant need not sufficiently guarantee the right of assistance of counsel in the case requiring the supplementation of defense power in the case of a necessary attorney-at-law.

In light of the provisions of the Criminal Procedure Act that the defendant must have a defense counsel in the necessary attorney-at-law case, the right to receive assistance from the defense counsel shall be fully guaranteed in the course of preparing and submitting the statement of grounds for appeal. Whether the defendant is a public defender or a private defense counsel need not be treated differently depending on whether the defendant is a public defender or a private defense counsel. According to the Majority Opinion, the newly appointed private defense counsel should identify the case within the period for submitting the remaining statement of grounds for appeal, and prepare and submit the statement of grounds for appeal within a short period of less than one day. The extremely, may have to prepare the statement of grounds for appeal. This is difficult to view that the defendant’s right to

Article 18(1)1 of the Regulations on Criminal Procedure provides that when a defense counsel is appointed, a judge of the court or district court shall revoke the appointment of a defense counsel in order to exercise his/her right to defense. As can be seen, the defendant exercises his/her right to appoint a defense counsel, and the court did not take measures to transfer his/her duties separately to a defense counsel, and it is unreasonable to view the defendant’s act of appointing a defense counsel for the purpose of exercising his/her right to defense as grounds for responsibility.

Therefore, the similarity between the case in which a public defender is replaced due to a cause not attributable to the defendant in a case requiring a necessary attorney-at-law case is recognized, so Article 156-2(3) of the Regulation on Criminal Procedure with regard thereto can be applied by analogy. This conforms with the purport of the Constitution and the Criminal Procedure Act to ensure sufficient assistance of the counsel for the defendant

(5) The concerns about abuse, such as delay of litigation, as pointed out by the Majority Opinion, are likely to be excessively excessive. Even if certain litigation procedures are delayed, it is reasonable to view that the necessary attorney-at-law case is sufficiently acceptable within the criminal justice procedure, taking into account the importance of the right under the Constitution and the Criminal Procedure Act, given that the right to assistance of counsel is guaranteed under the necessary attorney-at-law case. In special circumstances where the Defendant appointed a private defense counsel for the purpose of delaying litigation, the possibility of abuse can be excluded by applying the period for submitting the statement of grounds of appeal based on the accused or the previous public defense counsel. Therefore, it is difficult

The Majority Opinion argues that the possibility of abuse, such as delay of litigation, can be ruled out. As seen above, it is difficult to view that the necessary attorney-at-law appointed a private defense counsel to exercise his/her right to defense, and that the measures to sufficiently guarantee the right to assistance of the defense counsel are favorable to the Defendant with economic capacity against the equity between the other Defendant and the Defendant with no economic capacity.

The majority opinion concerns concerns concerns over the foreseeable confusion in the operation of the appellate court or the final appeal, but it is difficult to deem that confusion is difficult if it is limited to cases where the appellate court revokes the appointment of a public defender due to the appointment of a private defense counsel by the defendant and the public defense counsel after the defendant appointed a public defense counsel in the necessary attorney case, such as the case of this case where the notification of the receipt of the trial records is necessary.

B. According to the reasoning of the order of the court below and the records, the re-appellant was indicted for a limited term of at least three years. Thus, this case was an inevitable attorney-at-law case under Article 33 (1) 6 of the Criminal Procedure Act, and the defense counsel of the first instance court of the re-appellant and the first instance court of the re-appellant appealed against the judgment of the court of first instance, but did not state the grounds for appeal in each petition of appeal. The court below appointed a public defender on March 10, 2015, and served the public defender on March 12, 2015, and served the notice on each of the public defender on March 13, 2015. However, the re-appellant and the public defender appointed a private defense counsel on March 23, 2015. The court below revoked the decision to appoint a public defense counsel on May 21, 2015, and the private defense counsel newly appointed by the court below without separately notifying the private defense counsel of the notification of the grounds for appeal.

C. Examining the above facts in light of the legal principles as seen earlier, the court revoked the appointment of a public defender when the defendant and the public defender did not submit the appellate brief within the period for submission of the appellate brief, and there are no special circumstances such as that the re-appellant appointed a public defender for delay of litigation. Meanwhile, the court below should have separately received notification of the receipt of the trial record from the newly appointed private defense counsel, and should have deliberated on whether the private defense counsel submitted the appellate brief within the period for submission of the appellate brief under Article 361-3(1) of the Criminal Procedure Act from the date when the private defense counsel received the notification of the receipt of the trial record, and determined whether the legal

However, since the court below did not notify the newly appointed private defense counsel of the receipt of the trial record, it is deemed that the re-appellant's defense counsel submitted the appellate brief on May 21, 2015 before the expiration of the submission period for the appellate brief. The court below dismissed the appeal on the ground that the above appellate brief was submitted after the expiration of the submission period for the appellate brief. The court below erred by misapprehending the legal principles on the submission period for the appellate brief in the necessary

Therefore, the order of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination.

For the foregoing reasons, we express our dissent.

6. Concurrence with the Majority by Justice Kim Jae-hyung

A. The gist of the Dissenting Opinion is that the Majority Opinion is contrary to the purport of the Constitution and the Criminal Procedure Act that guarantees a suspect or a defendant the right to receive sufficient assistance of counsel, and that Article 156-2(3) of the Regulation on Criminal Procedure ought to apply mutatis mutandis to the notification of the receipt of criminal records to a private defense counsel. However, such assertion is unreasonable on the following grounds.

B. Where the court revokes a decision to appoint a private defense counsel due to the appointment of a private defense counsel, it cannot be deemed that the right to receive assistance of a defense counsel guaranteed by the Constitution is violated even if the private defense counsel does not receive notification of the receipt of the trial record

Article 12(4) of the Constitution provides that “Any person arrested or detained shall have the right to have the assistance of counsel.” The right to have the assistance of counsel refers to the right for the defendant, etc. to have the assistance of counsel in order to oppose the unilateral exercise of the State’s penal authority. However, the right to have the assistance of counsel may vary from the perspective of viewing the role and function of the counsel in criminal proceedings.

In criminal proceedings, the defense counsel takes charge of monitoring and controlling whether the rights of suspects and defendants are observed while participating in the criminal proceedings in favor of the suspects and the defendants, as well as the assistants supporting them to defend themselves in the position of the parties in conflict with the investigative and public prosecution agencies.

In order to realize the right to assistance of counsel, the Criminal Procedure Act provides that the right to interview and communication with the accused or the suspect (Article 34), the right to inspection and copying of documents, etc. related to the counsel during the trial period (Article 35), the right to participate by the counsel during the execution of a warrant of search and seizure (Article 121), the right to participate by the counsel at the time of examination of the suspect upon the request of the warrant of detention (Article 201-2) and the right to participate by the counsel at the time of examination (Article 214-2) according to the legality of the arrest and detention (Article 145), the right to participate by the counsel at the time of examination (Articles 176), the right to participate by the counsel at the time of examination (Articles 163 and 163-2), the right to participate by the counsel at the time of examination (Article 296-2), the right to participate by the counsel at the time of examination or examination (Article 294).

The Constitution does not have any provision regarding the submission of the statement of grounds for appeal or the receipt of the trial record. Within any scope, setting procedural rights, such as whether to allow the defense counsel to receive the notification of the trial record, is a matter that can be determined differently depending on legislative formation

C. In a case requiring a defense counsel, it cannot be deemed that the defendant's right guaranteed under the Criminal Procedure Act is infringed on, on the ground that the defendant and the defense counsel did not receive the notification of the receipt of the trial record from the newly

When a defense counsel is appointed before the notification of the receipt of the trial record, the legislators only prescribe that the defense counsel will receive the notification of the receipt of the trial record. If the court revokes the decision to appoint a private defense counsel following the notification of the receipt of the trial record, the court does not provide that the private defense counsel should re-examine the notification of the trial record.

After the defendant and the public defender received notification of the receipt of the trial record, the decision to appoint a public defender for the reason that the private defense counsel was appointed after the notification of the receipt of the trial record is revoked, and whether the notification of the receipt of the trial record is again filed to the private defense counsel is a technical issue in the litigation procedure. On these issues, it cannot be viewed as contrary to the purport of the Criminal

D. It is not reasonable to resolve the problem in this case by applying mutatis mutandis Article 156-2(3) of the Regulation on Criminal Procedure.

Article 108 of the Constitution provides, “The Supreme Court may establish regulations concerning the procedure of litigation and the internal discipline and administration of affairs of the court to the extent that does not conflict with any Act.” Therefore, the Supreme Court may establish provisions concerning litigation procedures even though there is no explicit delegation provision in the Act, unless it does not conflict with any Act.” Article 1 of the Regulation on Criminal Procedure provides, “The purpose of this Rule is to prescribe matters delegated by the Criminal Procedure Act to the Supreme Court Regulations and other necessary matters concerning the criminal procedure.”

The Criminal Procedure Act does not prohibit a private defense counsel, where the court revokes a decision to appoint a public defense counsel due to the appointment of a private defense counsel in a case requiring the presence of the defendant. This does not conflict with the Act even if the Supreme Court newly establishes a provision that allows a private defense counsel to receive the notification of the receipt of the

In such cases, where the Supreme Court deems it necessary for the newly appointed private defense counsel to receive notification of the receipt of the trial records, it may revise the rules on criminal procedure so that the notification of the receipt of trial records may be re-scheduled within a full or certain scope, considering various factors, such as the time and circumstances of the appointment of the private defense counsel, and the time of revocation of the decision of the appointment of the public defense counsel. Article 156-2(3) of the Regulation on Criminal Procedure, which is a provision on public defense counsel, applies mutatis mutandis to the instant case, rather than any unexpected confusion in the clear progress of the criminal appellate trial

However, even if the rules on criminal procedure are amended, the provisions on the procedure, such as the period for submitting the grounds for appeal or the notification of the receipt of the trial records, should be clearly prescribed so as not to be complicated and confused from the standpoint of the court or the defense counsel, as well as the general public. Moreover, since the introduction of the system to notify the receipt of the trial records in 1961, the criminal trial practice of the court has been significantly changed, it is necessary to reflect such change. As such, the rules on criminal procedure and the Criminal Procedure Act should bring about more desirable results than the method for resolving

E. In short, even if a private defense counsel in the instant case does not receive a new notification of the receipt of the trial records pursuant to Article 361-2(2) of the Criminal Procedure Act, it cannot be deemed as infringing on the defendant’s right to receive assistance from the defense counsel under the Constitution and the Criminal Procedure Act. If necessary, the Supreme Court may amend the rules on criminal procedure and resolve them in a more appropriate manner, and there is no need to apply Article 156-2(3) of the Regulations on Criminal Procedure

As above, I express my concurrence with the Majority Opinion.

7. Concurrence with the Dissenting Opinion by Justice Lee Dong-won is as follows.

In order to substantially guarantee the defendant's right to receive the assistance of counsel in the necessary attorney-at-law case in the course of preparing and submitting the grounds of appeal, it is important to substantially guarantee the attorney-at-law.

Article 18(1)1 of the Regulation on Criminal Procedure provides that when a defense counsel is appointed, a judge of a court or district court shall revoke the appointment of a public defender. If the court revokes the decision to appoint a public defender pursuant to the rules on criminal procedure and considers it unnecessary for the private defense counsel to re-examine the notification of the receipt of the trial records, the private defense counsel shall independently ascertain the case within the remaining period for submission of the statement of reasons for reasons of reasons of reasons of reasons of reasons of reasons of reasons of reasons of reasons of reasons of reasons of reasons of reasons of reasons of reasons of reasons of reasons of

In order to substantially guarantee the defendant's right to assistance of counsel in the course of preparing and submitting the statement of grounds for appeal, even if the defendant appoints a private defense counsel, it is desirable to revise Article 18 (1) 1 of the Regulations on Criminal Procedure so that the decision to appoint a public defense counsel

If the court does not revoke the decision to appoint a public defender, the court may use the materials on defense activities, including the examination of facts and legal principles for the defendant's interview or the preparation of the statement of grounds for appeal, which the public defender and the private defense counsel have filed within the deadline for submission of the remaining statement of grounds for appeal. In such cases, at least 20 days of the defendant's defense counsel are guaranteed to the public defense counsel, and the private defense counsel can also use the materials on defense activities of the public defense counsel. Thus, the defendant's right to receive the assistance of

On the other hand, if the court revokes the decision to appoint a public defender pursuant to Article 18(1)1 of the Regulation on Criminal Procedure and does not need to re-examine the notification of the receipt of the trial records to the private defense counsel, as seen earlier, the private defense counsel should prepare and submit the statement of grounds for appeal within the remaining period for submission of the statement of grounds for appeal, which does not exceed 20 days after de facto shortening the notification of the receipt of the trial records. This is difficult to say that the defendant's right to receive assistance from the defense counsel in the course of preparing and submitting the statement

In this case, if the court revokes the decision to appoint the existing public defender pursuant to Article 18 (1) 1 of the Regulation on Criminal Procedure within the period for submitting the statement of reasons for appeal of the public defender, the court shall notify the newly appointed private defense counsel of the receipt of the notification of the notification of the receipt of the statement of reasons for appeal, and shall substantially guarantee the defense counsel

As above, I express my concurrence with the Dissenting Opinion.

Justices Jo Hee-de (Presiding Justice)