In a case where the first instance court accepted the request for the appointment of a state appointed defense counsel and sentenced to imprisonment without prison labor, and subsequently requested the appointment of a state appointed defense counsel by filing an appeal under the custody of a state appointed defense counsel, and the lower court did not make any decision on this request and proceeded the trial date and dismissed the request for the appointment of a state appointed defense counsel, the case holding that the lower court erred by violating the provisions of the Criminal Procedure Act

In the first instance court where the defendant for whom the request for the appointment of a state appointed defense counsel has been accepted and was sentenced to imprisonment without prison labor after being detained, filed an appeal and again filed a request for the appointment of a state appointed defense counsel, and the court below did not make any decision on this request and completed substantive pleadings and hearings and dismissed the request for the appointment of a state appointed defense counsel after completion of all hearings and hearings, the case holding that the court below erred by violating the provisions of the Criminal Procedure Act concerning the measures to dismiss the request for the appointment of a state appointed defense counsel without delay, on the grounds that there are sufficient grounds to find that there are special changes in circumstances to reject the defendant's request for the appointment of a state appointed defense counsel, unlike the first instance court's decision on the appointment of a state appointed defense counsel, and the defendant could not appoint a defense counsel due to poverty or other reasons, and the defendant should have participated in the trial without delay, but without any decision on the request for the appointment of a state appointed defense counsel, and the court below should proceed the trial without delay and complete substantial pleadings and hearings, and subsequently dismissed the request.

Article 12(4) of the Constitution of the Republic of Korea; Articles 33(2), 282, 361-3(1), 370 of the Criminal Procedure Act; Articles 17(3), 17-2, and 156-2(2) and (4) of the Rules on Criminal Procedure; Article 8(1) of the Rules on Rules on Public Defense Governing Public Defense

Defendant

Defendant

Suwon District Court Decision 2012No4425 decided December 6, 2012

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

The grounds of appeal are examined.

1. The proviso of Article 12(4) of the Constitution provides, “When a criminal defendant is unable to file a defense counsel on his/her own, the State shall have a defense counsel under the conditions as prescribed by Act.” Accordingly, Article 33(2) of the Criminal Procedure 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, the case in which a public defender is appointed pursuant to Article 33(2) of the Criminal Procedure Act shall not be revised without a defense counsel (main sentence of Article 282 of the Criminal Procedure Act) and these provisions shall apply mutatis mutandis to the appeal trial (Article 37

In addition, Article 17(3) of the Regulation on Criminal Procedure provides that where a defendant requests the appointment of a state appointed defense counsel under Article 33(2) of the Criminal Procedure Act, the court shall appoint a state appointed defense counsel without delay, and Article 17-2 of the Regulation on Criminal Procedure shall not apply where the defendant requests the appointment of a state appointed defense counsel under Article 33(2) of the Criminal Procedure Act. Article 156-2(4) of the Regulation on Criminal Procedure provides that where the appellate court dismisses the defendant's request for appointment of a state appointed defense counsel, the period from the date the defendant requested the appointment of a state appointed defense counsel until the date the certified copy of the decision on dismissal of the request for appointment of a state appointed defense counsel is served shall not be included in the period for submission of the statement of grounds for appeal under Article 361-3(1) of the Criminal Procedure Act. Meanwhile, Article 8(1) of the Rules on Criminal Procedure provides that the appellate court and the appellate court shall appoint a state appointed defense counsel without delay where the defendant requests the appointment of a state appointed defense counsel by authority or ex officio.

2. According to the records, the Defendant requested the court of first instance to appoint a state appointed defense counsel for reasons of poverty and other reasons immediately after the indictment was made in unconvicted condition. The first instance court accepted the request and decided to appoint a state appointed defense counsel. The Defendant was sentenced to imprisonment for ten months after his absence under the provisions of special cases concerning the promotion, etc. of litigation after having participated in the trial under the presence of a state appointed defense counsel. ② After having been detained, the Defendant filed an appeal through the recovery of his right of appeal, and received notification of the receipt of the trial record from the court on October 15, 2012, the Defendant submitted to the court of first instance on October 22, 2012, which included the contents of seeking consolidation of the case under separate investigation, and on October 26, 2012, the court below rejected the Defendant’s request to the court of first instance on the ground that “The Defendant did not have any error of law regarding the appointment of a state appointed defense counsel for reasons of unfair sentencing,” and the Defendant did not immediately dismiss the Defendant’s request to the court below.

In light of the above provisions and records, it is sufficient to find that the defendant requested in writing the appointment of a public defender due to poverty stipulated in Article 33(2) of the Criminal Procedure Act within the period for submitting the statement of grounds for appeal, and there is no special data to deem that there is any change in circumstances to reject the defendant's request for the appointment of a public defender in the court of first instance, unlike the decision to appoint a public defender in the records. Rather, according to the records, there is sufficient room to find that the defendant is unable to appoint a defense counsel due to poverty or any other reason. Therefore, the court below should have decided to appoint a public defender without delay and should have the defense counsel participate in the trial without any decision on the request for the appointment of a public defender, but without a defense counsel, should proceed while the defendant attended the trial without a defense counsel and completed the substantive pleading and examination, and then dismissed the defendant's appeal. Thus, the court below erred by violating the provisions of the Criminal Procedure Act concerning the appointment of a public defender, which affected the conclusion of the judgment.

Meanwhile, the lower court determined that only unfair sentencing was the grounds for appeal by the Defendant. However, the period from October 26, 2012 to November 20, 2012 from the date on which the Defendant requested the appointment of a public defender from October 26, 2012, to the date on which the decision of dismissal was notified, is not included in the period for submission of the grounds for appeal, and thus the period for submission of the grounds for appeal by the Defendant should be deemed to be November 30, 2012. Accordingly, it is additionally pointed out that the Defendant’s argument that the Defendant stated a mistake of facts on the date of the first trial of the lower court and that the argument of mistake of facts in the document

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 Kim So-young (Presiding Justice)