In a case where the defendant requested the appointment of a state appointed defense counsel in writing, accompanied by documents, such as a certificate of national basic livelihood recipients, and the court below dismissed the above request and subsequently sentenced the judgment, the case holding that the court below erred in violation of Acts and subordinate statutes in the measures taken by the court below without the decision of the appointment of a state appointed defense counsel even though there is sufficient ground to find that the defendant is unable

Article 33(2) of the Criminal Procedure Act, Articles 17(3) and 17-2 of the Regulation on Criminal Procedure

Defendant

Defendant

Busan District Court Decision 2016No1355 decided October 6, 2016

The judgment below is reversed, and the case is remanded to Busan District Court.

The grounds of appeal are examined.

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

According to the records, on May 11, 2016, prior to the first trial date of the lower court, the Defendant filed a written request to the lower court for the appointment of a state appointed defense counsel, along with a certificate of recipient that he/she is a national basic livelihood recipient, along with a housing lease agreement of KRW 1 million and KRW 1.40,000,000. Nevertheless, the lower court dismissed the Defendant’s request for the appointment of a state appointed defense counsel on May 13, 2016, and subsequently sentenced the lower judgment while the Defendant appeared on the trial date

However, according to the evidence, such as the National Basic Living Security Benefit Certificate submitted by the defendant requesting the appointment of a state appointed defense counsel, it is sufficient to find that the defendant is unable to appoint a defense counsel due to poverty, and there is no other circumstance to deem otherwise in the record. If so, the court below should have decided to appoint a state appointed defense counsel and have the appointed defense counsel participate in the trial, barring any special circumstances. Nevertheless, the court below conducted the trial without taking such measures. This infringes on the defendant's right to have the assistance of a state appointed defense counsel in violation of the provisions of the Criminal Procedure Act regarding the appointment of a state appointed defense counsel (see Supreme Court Decision 2010Do18103, Mar. 24, 201).

Therefore, without further proceeding to decide on 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

Justices Kwon Soon-il (Presiding Justice)