The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 10 million.

The above fine shall not be paid by the defendant.

Summary of Grounds for Appeal

The punishment of the court below (three months of imprisonment) is too unreasonable.

Article 33(2) of the Criminal Procedure Act (hereinafter “Act”) provides that “Where a defendant is unable to appoint a defense counsel due to poverty or any other reason, if a defendant makes a request, the court shall appoint a defense counsel.” Article 17(3) of the Regulation on Criminal Procedure provides that the court shall appoint a defense counsel without delay in cases where the defendant makes a request for the appointment of a public defender pursuant to Article 33(2) of the Act, and Article 17-2 of the Regulation on Criminal Procedure provides that the defendant shall submit explanatory materials.

According to the records, the defendant requested the appointment of a public defender on December 31, 2019 on the grounds of poverty or other reasons, and submitted a basic living security recipient certificate and a certificate of disabled person as evidence. On January 29, 2020, the court below held that the defendant was present only on the part of the defendant on January 29, 2020, and that the court ordered the appointment of a public defender only on February 12, 2020.

According to the documents submitted by the defendant, there is sufficient room to recognize that the defendant is unable to appoint a defense counsel due to poverty. Therefore, the court below decided to appoint a public defender and let the appointed defense counsel participate in the trial unless there are special circumstances.

Nevertheless, as long as the lower court did not do so and conducted the subsequent trial, the lower court erred by misapprehending the provisions of the Criminal Procedure Act regarding the appointment of a public defender so that the Defendant would not effectively exercise his/her right to defense with the assistance of a public defender, thereby adversely affecting the conclusion of the judgment. Accordingly, the lower court erred by misapprehending the legal doctrine regarding the appointment of a public defender, thereby adversely affecting the conclusion of the judgment.