[1] Where a case does not fall under any of the subparagraphs of Article 33(1) of the Criminal Procedure Act, whether a court may refuse to appoint a state appointed defense counsel if it deems it necessary for the protection of rights (affirmative), and whether Article 33(3) of the Criminal Procedure Act is violated in cases where a trial without a state appointed defense counsel was conducted without the appointment of a state appointed defense counsel but it is not recognized that the defendant's defense was infringed

[2] In a case where the first instance court appointed a state appointed defense counsel and sentenced the defendant to imprisonment with prison labor and did not place a statutory detention, and the court below dismissed the defendant's appeal on the ground that the defendant did not submit the grounds of appeal within the statutory period after submitting the petition of appeal only, and did not request the appointment of a state appointed defense counsel, the case holding that the judgment of the court below which proceeded with the trial without the appointment of a state appointed defense counsel is just,

[1] Article 33 (1) and (3) of the Criminal Procedure Act provides that the court shall appoint a defense counsel ex officio in cases falling under any of the subparagraphs of paragraph (1), while Article 33 (3) of the Criminal Procedure Act provides that a defense counsel shall be appointed if there is no defense counsel in cases falling under any of the subparagraphs of paragraph (1), while Article 33 (3) of the Criminal Procedure Act provides that a defense counsel shall be appointed at the discretion of the defendant within the extent that does not go against the express will of the defendant, unless the court recognizes it necessary for the protection of rights unless it falls under any of the subparagraphs of Article 33 (1) of the Criminal Procedure Act, and even if a trial is conducted without the appointment of a public defender, if it is not recognized that the defendant's defense right is infringed and affected the judgment, it shall not be deemed that there is a violation of Article 3

[2] In a case where the first instance court appointed a state appointed defense counsel and sentenced the defendant to a punishment of one year for imprisonment, and did not detain the defendant, but the court below dismissed the defendant's appeal since the defendant did not submit the grounds of appeal within the statutory period without requesting the appointment of a state appointed defense counsel, the case holding that the court below's judgment, measures and procedures conducted the trial without the appointment of a state appointed defense counsel are just, and as long as the defendant sought punishment only on the premise of agreement with the victims, it is difficult to view that the court below's failure to appoint a state appointed defense counsel infringed the defendant's right to defense and affected the judgment

[1] Article 12(4) of the Constitution, Article 33(1) and (3) of the Criminal Procedure Act / [2] Articles 33(1) and (3), 361-3(1), and 361-4 of the Criminal Procedure Act

[1] Supreme Court Decision 2010Do881 Decided April 29, 2010 (Gong2010Sang, 1080) Supreme Court Decision 2010Do4629 Decided June 10, 2010

Defendant

Defendant

Attorney Jeon-hwan

Daejeon District Court Decision 2012No1670 Decided January 23, 2013

The appeal is dismissed.

The grounds of appeal are examined.

Article 33 (1) and (3) of the Criminal Procedure Act provides that the court shall appoint a defense counsel ex officio in cases falling under any subparagraph of paragraph (1). While Article 33 (3) of the Criminal Procedure Act provides that a defense counsel shall be appointed if there is no defense counsel in cases falling under any subparagraph of paragraph (1), a defense counsel shall be appointed at the discretion of the defendant within the extent that does not go against the express will of the defendant, except in cases falling under any subparagraph of Article 33 (1) of the Criminal Procedure Act, unless the court recognizes it necessary for the protection of rights, and even if a trial is conducted without the appointment of a public defender, if it is not recognized that the defendant's defense right is infringed and affected the judgment, there is no violation of Article 33 (3) of the Criminal Procedure Act (see Supreme Court Decision 2010Do881, Apr. 29, 2010).

According to the records, in this case that does not fall under any of the subparagraphs of Article 33 (1) of the Criminal Procedure Act, the defendant submitted a written opinion denying the original facts charged and a written request for appointment of a state appointed defense counsel on February 13, 2012, which is the first trial date, and the first instance court appointed a state appointed defense counsel on February 13, 2012. The defendant and the state appointed a public defense counsel on the fourth trial date, who denied the facts charged thereafter, stated that they would recognize all the facts charged and endeavor to reach an agreement with the victims on the fourth trial date. The first instance court, after conducting an investigation before the judgment, sentenced the defendant to imprisonment with prison labor for one year, is sentenced to imprisonment with prison labor for the defendant, but has not been detained in the court, and the defendant did not request the appointment of a state appointed defense counsel without submitting a written request for appeal within the statutory period, and the defendant appeared at the first trial date and made a statement to the effect that the defendant will reduce the punishment and submit the same reasons for appeal, and the court below did not inform the defendant of legitimate grounds for appeal.

Examining these facts in light of the above legal principles, we affirm the judgment, measures and procedures of the court below, which conducted the trial without the appointment of a public defender, by deeming that it is not necessary for the court to appoint a public defender at its discretion in order to protect the rights of the defendant. Since the defendant sought punishment on the premise of an agreement with the victims, it is difficult to see that the court below's failure to appoint a public defender infringed the defendant's right to defense and affected the conclusion of the judgment. Thus, there is no violation of law by infringing the defendant's right to counsel or by misapprehending the legal principles as to Article 361-4

Meanwhile, according to Article 383 subparag. 4 of the Criminal Procedure Act, an appeal on the ground of unfair sentencing may be filed only when the court below rendered a judgment of death penalty or imprisonment with or without prison labor for an indefinite term or for not less than ten years. Thus, in this case where the defendant was sentenced to a more minor punishment, the argument that the amount of the sentence is unreasonable

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)