In a case where a person does not fall under any of the subparagraphs of Article 33(1) of the Criminal Procedure Act, whether the court may not appoint a public defender unless it deems it necessary for the protection of rights (affirmative), and whether the court violates Article 33(3) of the Criminal Procedure Act in a case where a trial is conducted without a public defender but it is not recognized that the defendant's right to defense was infringed and affected the judgment (negative)

Article 12(4) of the Constitution, Article 33(1) and (3) of the Criminal Procedure Act

Supreme Court Decision 2013Do1886 Decided May 9, 2013 (Gong2013Sang, 1069)

Defendant

Defendant

Attorney Yoon Ho-hoon

Jeonju District Court Decision 2016No292 decided May 12, 2016

The appeal is dismissed.

The grounds of appeal are examined.

1. Article 33(1) and (3) of the Criminal Procedure Act provides that a court shall appoint a defense counsel ex officio in cases falling under any of the subparagraphs of paragraph (1). However, Article 33(3) provides that a defense counsel shall be appointed at the discretion of a 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, unless it recognizes it necessary for the protection of rights, and even if a trial is conducted without the appointment of a defense counsel, it does not constitute a violation of Article 33(3) of the Criminal Procedure Act (see, e.g., Supreme Court Decision 201Do1886, May 9, 2013).

The defendant was detained by a warrant of detention for compulsory appearance at the third trial date of the court of the first instance, so the court of the first instance should have appointed a defense counsel ex officio to the defendant who is not a defense counsel, and proceed with the trial without a defense counsel. In so doing, the court of the first instance asserts that all the procedural acts conducted are invalid.

The record reveals the following facts. The presiding judge of the first instance court issued a warrant of detention to arrest a defendant as the defendant did not serve a writ of summons on the defendant, and the defendant was executed and present on the third trial date of the first instance court on January 12, 2016. The defendant was at a low level of ability to read or write Korean language, and the police officer failed to read or read the protocol of interrogation of suspect suspect, and the police officer did not read it, and then sent his/her signature and seal to the defendant. The first instance court revised the protocol of interrogation of suspect suspect to the defendant who was not a defense counsel on the third trial date without appointing a defense counsel, and concluded the pleadings, and concluded the trial, based on the result of the trial, the defendant was convicted on February 16, 2016.

However, considering the fact that the Defendant did not leave the court without permission of the presiding judge as prescribed by Article 281(1) of the Criminal Procedure Act until the closure of pleadings after the Defendant appeared on the third trial date of the first instance court, and there are no other circumstances to deem that he could not move his place by force, the Defendant does not constitute “detained Defendant” as prescribed by Article 33(1) of the Criminal Procedure Act. In addition, on the third trial date of the first instance court, the Defendant’s judgment and procedure of the first instance court, which conducted the trial without the appointment of a public defender, shall not be deemed to be erroneous in the determination and procedure of the court of the first instance, on the ground that it is unnecessary to appoint a public defender at discretion in order to protect the rights of the Defendant, who does not fall under any of the subparagraphs of Article 33(1) of the Criminal Procedure Act, on the ground that there is no need to appoint a public defender for the protection of rights.

Therefore, the judgment of the court below that determined the grounds for appeal based on the evidence examined and adopted by the court of first instance on the premise that the procedural acts in the court of first instance are valid, shall not be erroneous in the misapprehension of legal principles as to the validity of procedural acts conducted without defense counsel in the necessary attorney-at-law

2. Furthermore, under Article 383 subparag. 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is allowed only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed, and thus, in this case where a more minor sentence has been imposed on the Defendant, the argument that the sentencing of the sentence is unreasonable is not

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

Justices Park Poe-dae (Presiding Justice)