[1] In the case of the defendant with hearing disability, the criteria for determining whether the defendant needs to appoint a public defender, and the effect of the violation

[2] The case holding that the court below's dismissal of the above claim and the court below's decision which did not err in the misapprehension of legal principles or incomplete hearing since the court below's dismissal of the above claim and conducted without defense counsel for the purpose of trial, since the defendant was a person with hearing disability of the third grade, who has considerable difficulty in exercising his/her right to defense on the date of trial, and

[1] Articles 33(2) and (3), 275-3, and Article 12(4) of the Constitution of the Republic of Korea / [2] Article 33(2) and (3) of the Criminal Procedure Act

[1] Supreme Court Decision 2010Do881 Decided April 29, 2010 (Gong2010Sang, 1080)

Defendant

Defendant

Seoul Central District Court Decision 2010No267 Decided April 8, 2010

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

We examine the grounds of appeal.

1. Article 33(1) and (2) of the Criminal Procedure Act provides for the duty of the court to appoint a public defender ex officio or upon request in certain cases so that the defendant’s right to assistance of counsel guaranteed by Article 12 of the Constitution can be effectively realized in the trial proceedings, and Article 33(3) of the Criminal Procedure Act (hereinafter “Act”) provides that “Where the court deems it necessary for protecting the right in consideration of the defendant’s age, intelligence, level of education, etc., it shall appoint a defense counsel to the extent that it does not go against the defendant’s express intent.”

Meanwhile, Article 275-3 of the Act declares the principle of oral argument by stipulating that “the oral argument in the court shall be made orally.” Accordingly, most criminal proceedings, namely, notification of the right to refuse to make statements in the trial court (Article 283-2 of the Act), the presiding judge’s recognition examination (Article 284 of the Act), all the facts charged by the public prosecutor (Article 285 of the Act), the facts charged by the public prosecutor (Article 285 of the Act), the confirmation of the facts charged by the defendant and the statement of facts beneficial to the defendant (Article 286 of the Act), and the reading principle in the examination of documentary evidence (Article 292 of the Act) are conducted orally. However, if the defendant is deemed unable to exercise his/her right to defense through his/her oral argument in the trial proceeding by oral argument, there is a high possibility of effectively exercising his/her right to defense by failing to properly confirm the contents of interrogation or the result of examination of evidence related to the facts charged during the trial proceeding.

Therefore, in light of the right to assistance of counsel under the Constitution and the purport of the public defender system under the Criminal Procedure Act, etc., the court shall confirm the age, intelligence, and education of the defendant by applying mutatis mutandis the provisions of Article 33(3) of the Criminal Procedure Act, and if it is deemed necessary for protecting the right, it is necessary to appoint a public defender and guarantee the right to defense of the defendant to the extent that it does not go against the express will of the defendant who is the hearing-impaired person. Nevertheless, in a case where it is deemed that the result of the judgment was affected by the infringement of the defendant's right to defense without the appointment of a public defender, it shall be deemed that there was an error of violating Article 33(3) of the Criminal Procedure Act (see, e.g., Supreme Court Decision

2. According to the records, as a person with hearing disability of the third level, the defendant suffered considerable difficulty in exercising his/her right to defense in the process of examination of evidence, such as oral proceedings and reading of documentary evidence, etc., which are conducted on the trial date, and the defendant submitted a statement of grounds for appeal and a written request for appointment of a public defender, which contain the purport that he/she responded to a defense counsel without proper hearing of the presiding judge on February 11, 2010, together with a statement of grounds for appeal and a written request for appointment of a public defender, which contain the purport that he/she responded to a defense counsel on the ground of hearing disability, and accompanying the certificate. Nevertheless, the court below did not examine whether the need for protection of rights is recognized by ascertaining the defendant's age, intelligence, level of education and the degree of hearing disability including the defendant's age, and then proceeded with the trial date without a defense counsel on February 12, 2010. Thus, the court below erred in the misapprehension of legal principles as to Article 33 (3) of the Criminal Procedure Act, and failing to exhaust all necessary deliberations.

3. Therefore, without examining the remaining grounds of appeal, the judgment 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 Yang Sung-tae (Presiding Justice)