Whether it is necessary to vindicate that the defendant constitutes “where the defendant is unable to appoint a defense counsel due to poverty or any other reason” under Article 33(2) of the Criminal Procedure Act, which provides that the court shall appoint a defense counsel at the request of the defendant (affirmative in principle)

Article 33(1) and (2) of the Criminal Procedure Act

Supreme Court Decision 2007Do5847 Decided November 16, 2007 Supreme Court Decision 2015Do7027 Decided July 23, 2015

Defendant

Defendant

Seoul Northern District Court Decision 2017No1016 decided October 27, 2017

The appeal is dismissed.

The grounds of appeal are examined.

1. Criminal facts have to be proved to the extent that there is no reasonable doubt (Article 307(2) of the Criminal Procedure Act). However, the preparation of evidence and the probative value of evidence conducted on the premise of fact-finding belong to the free judgment of the fact-finding court (Article 308 of the Criminal Procedure Act).

For the reasons indicated in its reasoning, the lower court rejected the Defendant’s allegation in the grounds of appeal as to the mistake of facts and misapprehension of legal principles, deeming the first instance judgment to the effect that the Defendant’s assertion alone is recognized as intentional driving without a license.

The ground of appeal disputing such determination by the lower court is merely an error of the lower court’s determination of free evaluation of the fact-finding court, and thus cannot be accepted. In addition, even if examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the intentional act of violating the Road Traffic Act (unlicensed Driving) contrary to what is alleged in the ground of appeal.

In addition, the court's decision to adopt the application for examination of evidence may choose not to investigate it when it deems it unnecessary at the discretion of the court (see Supreme Court Decision 2010Do7947, Jan. 27, 2011, etc.). Thus, even if the court below rejected the defendant's application for examination of evidence, it cannot be said that the court below erred by law. Furthermore, according to the records, the defendant withdrawn his application for witness against Non-Indicted 1 and Non-Indicted 2 on the first trial date of the court below, and the court below did not dismiss the application for witness.

2. Article 33(1) of the Criminal Procedure Act provides that the court shall appoint a defense counsel ex officio, while Article 33(2) provides that "where a defendant is unable to appoint a defense counsel due to poverty or any other reason, the court shall appoint a defense counsel at the request of the defendant." In this context, in principle, it shall be proved that "where the defendant is unable to appoint a defense counsel due to poverty or any other reason" (see Supreme Court Decision 2007Do5847, Nov. 16, 2007).

In this case where it is difficult for the court below to conclude that the defendant did not submit explanatory materials to support the reason while requesting the appointment of a state appointed defense counsel, and that the reason is sufficiently explained by the record, it is questionable whether the court below dismissed the defendant's request for the appointment of a state appointed defense counsel and proceed with the trial without a defense counsel in light of various circumstances, such as the progress of the lawsuit, etc. However, it is difficult to find that the court below erred by infringing on the defendant's right to receive assistance of defense counsel or violating the Acts and subordinate statutes related to the appointment of a state appointed defense counsel, etc. (see Supreme Court Decision 2013Do351

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

Justices Cho Jae-chul (Presiding Justice)