Whether the legal nature and non-exercise of authority of Articles 18(2) and 21 of the Regulations on Criminal Procedure as to the right to cancel the appointment of a state appointed defense counsel and the right to supervise constitutes an illegal act which affected the judgment (negative)

According to Article 21 of the Regulation on Criminal Procedure, the court may notify the president of Korean Bar Association or its affiliated local bar association of the reason when the private sector in which the public defender is not compliant is remarkable. According to Article 18(2) of the same Rule, the court may cancel the appointment of a public defender when the public defender is not faithfully performing his/her duties or there are other reasonable grounds. However, even if the court did not exercise such authority properly, it does not constitute an error of law that affects the conclusion of the judgment just by itself, even if the court did not exercise

Articles 18(2) and 21 of the Regulations on Criminal Procedure

Defendant and Appellant for Custody

Defendant and Appellant for Custody

Attorney Inducement

Seoul High Court Decision 97No588, 97No27 delivered on May 2, 1997

All appeals against the defendant case and custody claim are dismissed. 60 days out of detention days after the appeal shall be included in the principal sentence.

The grounds of appeal by the defendant and the respondent for defense (hereinafter only referred to as the defendant) and the state appointed defense counsel are examined.

1. As to the defendant case

In light of the records, the court below did not have any basis to regard the defendant's state appointed defense counsel as a state appointed defense counsel because the defendant neglected his/her duties, and there is no reason to regard it as a state appointed defense counsel. According to Article 21 of the Regulation on Criminal Procedure, the court may notify the president of Korean Bar Association or local bar association to which he/she belongs of the reason if the private defense counsel is remarkably unfaithful. According to Article 18 (2) of the same Rule, the court may cancel the appointment of a state appointed defense counsel when the state appointed defense counsel fails to perform his/her duties faithfully or there is any other reasonable reason. However, even if the court did not exercise such authority properly, it cannot be said that there is an error of law affecting the conclusion of the

Next, as to the assertion that the first instance court and the lower court did not give the defendant an opportunity to make a statement favorable to the defendant, or did not provide the opportunity to make a last statement, or that there was an error in the judgment without suspending the procedure of trial in accordance with the provisions of Article 306 (1) of the Criminal Procedure Act, the first instance court and the lower court provided the defendant with the right to make a statement favorable to him/her, and the first instance court and the first instance court provided the defendant with the opportunity to make a last statement and provided the defendant with an opportunity to make such a statement, and it can be known that the defendant did not have a situation where the defendant does not have the ability to discern things or make a decision during the public trial process, and therefore there is no reason to discuss this point.

Then, according to the records, the judgment of the court of first instance that the defendant was not in a state of mental or physical disorder due to the fact that the defendant was under the influence of alcohol at the time of the crime of this case is just and acceptable, and there is no error of law by misunderstanding legal principles as discussed above. There is no reason to discuss this issue by a state appointed defense counsel.

In this case where a sentence of five-year imprisonment with prison labor is imposed against the defendant, the amount of punishment imposed is too unreasonable and inappropriate cannot be a legitimate ground for appeal. There is no ground for challenge by a state appointed defense counsel on this point.

2. As to a custody application case

The court below maintained the first instance court which judged that the defendant is in danger of re-offending as stipulated in Article 5 of the Social Protection Act in light of the defendant's criminal records, past criminal experience, character and family environment, and the background and the habition of larceny as stated in the several laws. In comparison with the records, the above judgment of the court below is just, and there is no error of law by misunderstanding legal principles as to the risk of re-offending, as discussed above. There is no ground for the argument of the defendant and the public defender on this issue.

3. Therefore, all appeals against the Defendant and the custody claim are dismissed, and part of the detention days after the appeal is included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeong Jong-ho (Presiding Justice)