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(영문) 대법원 2015.12.24 2015도10544
폭력행위등처벌에관한법률위반(집단ㆍ흉기등상해)
Text

The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.

Reasons

We examine the grounds of appeal ex officio prior to judgment.

If the first instance trial proceedings have been conducted without a defense counsel in cases falling under a case requiring attorney-at-law case as prescribed in Article 282 of the Criminal Procedure Act, and the examination of evidence and the examination of the defendant has been conducted without a defense counsel, all the procedural acts conducted in such unlawful trial proceedings are null and void. In such cases, the appellate court shall reverse the judgment of the first instance court which is unlawful after conducting a new procedural act while there

(See Supreme Court Decision 94Do2347 Decided April 25, 1995, and Supreme Court Decision 201Do6325 Decided September 8, 201, etc.). The facts charged in the instant case constitute a requisite attorney-at-law case as prescribed in Article 282 of the Criminal Procedure Act, since the statutory punishment is imprisonment for a limited term of at least three years pursuant to Articles 3(1) and 2(1)3 of the former Punishment of Violences, etc. Act (Amended by Act No. 12896, Dec. 30, 2014); and Article 257(1) of the Criminal Act.

However, the record reveals the following facts.

In other words, the first instance court revised the case without appointing a public defender without appointing a defense counsel, and proceeded with the examination of evidence and the examination of the accused, and sentenced the defendant guilty.

On June 10, 2015, the appellate court, which was in progress following the appeal filed by the defendant and the prosecutor, conducted the trial on the part of the public defender on June 10, 2015, notified the court of first instance of the relationship of evidence and the summary of the result of the examination of evidence, and notified the opinions that the request for examination of evidence may be made necessary to protect the following rights, and sentenced to a ruling dismissing all appeals filed by the defendant and the prosecutor on June 24, 201

Examining these facts in light of the legal principles as seen earlier, the first instance court is merely an attorney-at-law.

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