[1] In a case where a public defender is replaced due to a reason not attributable to the defendant in a case requiring a necessary attorney-at-law, the base point for calculating the period for submission

[2] The case holding that the court below's measure to dismiss an appeal by the ruling counting the period for submitting the appellate brief from the date of receiving the notification of the receipt of the trial records by the previous public defender, although the defense counsel was replaced due to the reasons not attributable to the defendant

[1] In the case requiring a defense counsel, if the defendant does not have a defense counsel, the appellate court in receipt of the records shall appoint a defense counsel without delay and shall allow the defense counsel to prepare and submit the appellate brief for the defendant within the prescribed period from the date the defense counsel was notified of the receipt of the notification of the trial records (Article 156-2 of the Regulation on Criminal Procedure), and protect the defendant's right to receive the assistance of the defense counsel (Article 156-2 of the Regulation on Criminal Procedure). The above right of the defendant to receive assistance of the defense counsel shall be equally protected in the case where the court appoints a defense counsel in the case requiring a defense counsel and then revokes the decision of appointment and appoints a new defense counsel for reasons not attributable to the defendant within the period for submitting the appellate brief. Thus, if the replacement of a defense counsel is made due to reasons not attributable to the defendant, the court shall apply Article 156-2 of the Regulation on Criminal Procedure to the newly appointed defense counsel, and in such case,

[2] The case holding that the court below's decision dismissing the appeal on the ground that the new public defender was submitted after the deadline for submitting the appellate brief was not timely filed, on the ground that the court below's decision was unlawful, since the period for submitting the appellate brief was calculated based on the date on which the previous public defender's receipt of the notification of the receipt of the trial records was

[1] Articles 361-2, 361-3, and 361-4 of the Criminal Procedure Act; Article 156-2 of the Regulation on Criminal Procedure / [2] Articles 361-2, 361-3, and 361-4 of the Criminal Procedure Act; Article 156-2 of the Regulation on Criminal Procedure

Re-appellant

Seoul High Court Order 2004No2722 dated May 26, 2005

The order of the court below is reversed, and the case is remanded to Seoul High Court.

The grounds for reappeal are examined.

In the so-called necessary attorney-at-law case, if the defendant does not have a defense counsel, the appellate court in receipt of the records shall appoint a defense counsel without delay and shall prepare and submit the appellate brief for the defendant within the prescribed period from the date on which the defense counsel received the notification of the receipt of the trial records (Article 156-2 of the Regulation on Criminal Procedure), and protect the defendant's right to receive the assistance of the defense counsel (Article 156-2 of the Regulation on Criminal Procedure). The defendant's right to receive the assistance of the defense counsel shall be equally protected in cases where the court appoints a defense counsel in the case requiring a defense counsel and then revokes the decision of appointment and appoints a new defense counsel due to the reasons not attributable to the defendant within the period for submission of the appellate brief, unless the replacement of a defense counsel is based on the reasons attributable to the defendant, the court shall notify the newly appointed defense counsel of the receipt of the trial records by applying Article 156-2 of the Regulation on

According to the records, in this case, which is a necessary attorney-at-law, the court below appointed a lawyer-at-law as a public defender on October 18, 2004. The re-appellant served the decision of appointment of a public defender, notification of receipt of trial records, and notification of replacement of a public defender on October 21, 2004. On the 22th of the same month of the same month, the re-appellant served a notice of application for appointment of a public defender and notification of receipt of trial records, and the re-appellant applied for replacement of a public defender as a public defender on the application for replacement of a public defender who served by the court below. The court below accepted the above application of the re-appellant and appointed a public defender as a public defender on the 27th of the same month, and appointed a lawyer-at-law's right as a public defender on November 15, 2004. However, the court below dismissed the re-appellant on October 21, 2004, and dismissed the notification of trial records and the statement of trial records.

According to the above facts, in this case, which is a necessary attorney-at-law case, the replacement of a public defender is the result of the court below's application for replacement of a public defender pursuant to the Re-appellant's notification of replacement of a public defender sent to the Re-appellant, and this is a replacement of a public defender due to the circumstances not attributable to the defendant. In this case, the period for submitting the statement of grounds for appeal should start again from the date on which the public defender's right to stay in a public defender newly appointed under the above legal principles

Nevertheless, the court below dismissed the re-appellant's appeal by determining that the period for submitting the appellate brief for the public defender's right to stay in court which was lawfully submitted was unlawful by calculating the period for submitting the appellate brief based on the date of receipt of the notification of the receipt of the public defender's written notification of the notification of the appellate brief. This decision of the court below erred by misapprehending the legal principles on the calculation of the period for submitting the appellate brief for the public defender's case requiring a necessary attorney, thereby affecting the conclusion of the judgment.

Therefore, the order of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yang Sung-tae (Presiding Justice)