[1] In a case where the defendant was prosecuted for a violation of the Punishment of Violence, etc. Act, which is a requisite attorney-at-law case, and thereafter filed an application for formal trial against the summary order of "Fraud" and appealed from the first instance court upon conviction, and the court below rendered a judgment dismissing the appeal by combining and hearing two cases without selecting a state appointed defense counsel, the case reversing the judgment of the court below in its entirety on the ground that the illegality of the trial proceedings conducted without the involvement of a defense counsel is not a requisite attorney-at-law, but a crime of fraud is not a necessary attorney-at-law, and the

[1] Articles 257(1) and 347(1) of the Criminal Act; Articles 2(1)3 and 3(1) of the Punishment of Violences, etc. Act; Articles 2(1)3 and 3(1) of the Criminal Procedure Act; Articles 282 and 370 of the Criminal Procedure Act

Defendant

Defendant

Attorney Park Do-young

Gwangju District Court Decision 2010No2716 Decided February 9, 2011

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

Judgment ex officio is made.

Of the facts charged in this case, the statutory penalty prescribed in Articles 3(1) and 2(1) of the Punishment of Violences, etc. Act and Article 257(1) of the Criminal Act, which are applicable provisions of the same Act, is imprisonment for not less than three years. As such, this case constitutes a requisite attorney-at-law as prescribed in Article 282 of the Criminal Procedure Act, and therefore, the appellate court, which is the appellate court, shall not amend or examine the case without a defense counsel pursuant to Article 370 of the Criminal Procedure Act, which is applicable

According to the records, the defendant was indicted for a violation of the Punishment of Violence, etc. of Bodily Injury by Carrying a deadly weapon and applied for formal trial against the summary order of fraud. The first instance court held that the arguments in the above two cases were combined, appointed a public defender and the trial proceedings were conducted, and sentenced to a suspended sentence of imprisonment with prison labor as to the crime of inflicting bodily injury by carrying a deadly weapon, and a fine as to the crime of fraud was imposed concurrently. However, the court below sentenced the dismissal of the appeal by amending the case without appointing a public defender and examining the case in spite of the fact that the defendant did not appoint a defense counsel. As such, if the court below rendered a single judgment by combining the above two cases, the act of litigation conducted in the trial without a defense counsel's involvement in the case is null and void, and the above illegality of the court below also affects the combined part of the crime of fraud, which is not a requisite attorney-at-law, and the same applies even if the court below has selected a separate fine as to the part, which is not a case requiring a defense counsel.

Therefore, the lower judgment is entirely reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)