[1] Whether the appellate court may decide the dismissal of an appeal on the ground that the defendant did not submit the grounds of appeal within the submission period for the grounds of appeal even though the appellate court received a request from the defendant for appointment of state appointed defense counsel (negative)

[2] The measures to be taken by the appellate court in a case where the appellate court delayed the decision of the rejection even after receiving a request from the defendant for the appointment of a public defender and the defendant failed to submit the grounds for appeal within the submission period

[1] When the defendant requests the appointment of a state appointed defense counsel for reasons of poverty, etc., although the court received the assistance of a state appointed defense counsel and requested the appointment of a public defender for sufficient time to prepare and submit the statement of grounds for grounds of grounds of grounds, the court delayed the appointment without justifiable grounds, and at the same time dismissed the request for appointment of a state appointed defense counsel, and if the defendant did not receive any assistance of counsel necessary for the preparation and submission of the statement of grounds for grounds of grounds of grounds of grounds of grounds of grounds of grounds of grounds of grounds of grounds of grounds of grounds of grounds of grounds of grounds of grounds of grounds of grounds of appeal, if the defendant did not have any assistance of counsel, this would not be different from that of the defendant's right to receive assistance.

[2] In a case where the failure of the defendant to receive the assistance of the counsel in the preparation and submission of the statement of grounds for appeal is not attributable to the defendant, but due to delay in the decision of the appellate court on whether to appoint a public defender, the appellate court shall grant the defendant an opportunity to submit the statement of grounds for appeal by applying Article 44 of the Regulation on Criminal Procedure mutatis mutandis to the defendant who takes measures to extend the period for submitting the statement of grounds for appeal by appointing a private defense counsel and providing the defendant with an opportunity to actually appoint a public defense counsel and submit the statement of grounds for appeal, even after the deadline for submitting the statement of grounds for appeal expires.

[1] Articles 33 subparag. 5 and 361-4 of the Criminal Procedure Act / [2] Articles 33 subparag. 5 and 361-4 of the Criminal Procedure Act, Articles 44 and 156-2 of the Rules on Criminal Procedure

[1] [2] Supreme Court Order 2000Mo66 dated November 28, 2000 (Gong2001Sang, 314)

Re-appellant

Daejeon District Court Order 2003No1384 Dated August 4, 2003

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

The grounds of reappeal are examined.

When the defendant requests the appointment of a state appointed defense counsel for reasons of poverty, etc., although the court received the assistance of a state appointed defense counsel and requested the appointment of a public defender for sufficient time to prepare and submit the grounds for appeal, the court delayed the appointment without justifiable grounds, and dismissed the request for the appointment of a state appointed defense counsel, and at the same time, dismissed the request for the appointment of a state appointed defense counsel, and the defendant did not have the counsel's assistance necessary for the preparation and submission of the grounds for appeal. If the defendant did not have the counsel's right to receive the counsel during the period for submission of the grounds for appeal, this does not differ from that of the defendant's right to receive the counsel. Thus, even if the defendant did not submit the grounds for appeal within the period

According to the records, the Re-Appellant received a written notification of the receipt of the trial record from the court of first instance on July 1, 2003 after the appeal of this case, and served the notification of the receipt of the trial record on July 4, 2003, which was served with the notification of the written notification of the appointment of a public defender, with the reason that "it is difficult to appoint a private defense counsel individually due to family circumstances". The Re-Appellant requested the appointment of a public defense counsel under Article 33 subparagraph 5 of the Criminal Procedure Act by designating one of the seven attorneys listed in the written notification of the appointment of a public defense counsel. After requesting the appointment of a public defense counsel, the Re-Appellant requested the appointment of a public defense counsel with the knowledge that the attorney appointed by the public defense counsel would be appointed as a public defense counsel, without any special reason, and delayed the decision of the appointment of a public defense counsel and at the same time, the dismissal decision of the appeal was made on August 4, 2003, and it did not receive any necessary assistance from the defense counsel.

Therefore, in this case, the re-appellant's failure to receive the assistance of counsel for the preparation and submission of the statement of reasons for appeal is not due to the cause attributable to the re-appellant, but due to delay in the decision of the court of original instance as to whether to appoint a public defender. Thus, even now, the court of original judgment shall give the counsel an opportunity to submit the statement of reasons for appeal within the prescribed period, counting from the date when the public defender is notified of the receipt of the records of trial (see Supreme Court Order 2000Mo66, Nov. 28, 200) by applying Article 44 of the Regulation on Criminal Procedure to the measures to extend the period for submitting the statement of reasons for appeal by applying mutatis mutandis Article 44 of the Regulation on Criminal Procedure.

Nevertheless, the court below, without taking the above procedure, dismissed the appeal filed by the Re-Appellant pursuant to Article 361-4 of the Criminal Procedure Act just on the ground that the Re-Appellant did not submit a legitimate statement of grounds for appeal within the deadline for submitting the grounds for appeal. This is not erroneous in the misapprehension of legal principles as to Article 361-4 of the Criminal Procedure Act, which affected the conclusion of the judgment. The ground for reappeal is with merit.

Therefore, the order of the court below is reversed, and the case is remanded 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 Yong-dam (Presiding Justice)