[1] The meaning of "right to have the assistance of counsel" guaranteed by the Constitution, and whether the State's obligation to guarantee the defendant's right to have the assistance of a public defender includes the obligation to have the defendant get the substantial assistance of a public defender (affirmative)

[2] In a case where the argument favorable to a defendant causes unfavorable consequences to another defendant in light of the facts charged per se, whether the interests conflict with each other (affirmative) / In a case where one of the Defendants whose interests conflict with each other, appointed a law firm as a defense counsel, and the court appointed one or more of the attorneys as a public defender for another defendant, whether it infringes on the defendant's right to have the assistance of a public defender (affirmative)

[1] The “right to have the assistance of a counsel” guaranteed by the Constitution refers to the right to have the assistance of a counsel. As such, the State’s duty to guarantee the defendant’s right to have the assistance of a public defender includes the obligation to enable the defendant to have the substantial assistance of a public defender.

[2] In a case where the argument favorable to a defendant in itself results in unfavorable consequences to another defendant, there is conflict of interests among co-defendants. Of the defendants whose interests conflict with each other, one of the defendants appointed a law firm as a defense counsel, and the court appoints one or more of the attorneys as a public defender for the other defendant, the attorney appointed as a public defender is difficult to give favorable arguments to all the defendants whose interests conflict with each other. Ultimately, the other defendant is unable to have the substantial assistance of the public defender, and therefore the appointment of a public defender infringes on the defendant's right to receive the assistance of the public defender.

[1] Article 12 (4) of the Constitution / [2] Article 12 (4) of the Constitution of the Republic of Korea; Article 33 of the Criminal Procedure Act; Article 50 (1) and (7) of the Attorney-at-Law Act

[1] Supreme Court en banc Order 2009Mo1044 Decided February 16, 2012 (Gong2012Sang, 480)

Defendant 1 and one other

Defendants

Attorney Im Dong-ho

Seoul Western District Court Decision 2014No1566 decided June 11, 2015

The part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to the Panel Division of the Seoul Western District Court. Defendant 2’s appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to Defendant 1’s ground of appeal

A. Legal doctrine on the right to have the substantial assistance of a public defender

The “right to have the assistance of counsel” guaranteed under the Constitution refers to the right to have the sufficient assistance of counsel. As such, the State’s duty to guarantee the defendant’s right to have the assistance of a public defender includes the obligation to allow the defendant to have the substantial assistance of a public defender (see, e.g., Supreme Court en banc Order 2009Mo1044, Feb. 16, 2012).

In a case where the argument favorable to a defendant in itself results in unfavorable consequences against another defendant, the interests of co-defendants conflict with each other. Among the defendants whose interests conflict with each other, one of the defendants appointed a specific law firm as a defense counsel, and when the law firm appointed a lawyer, if the court appoints one or several of the above attorneys as a public defender for another defendant, it is difficult for the attorney appointed as a public defender to give favorable arguments to all the defendants whose interests conflict with each other. Ultimately, the above other defendant is unable to receive the substantial assistance of the public defender. Accordingly, the above appointment of a public defender infringes on the defendant's right to receive the assistance of the public defender.

B. The Defendants’ interests conflict with each other

Of the facts charged against Defendant 1, the part related to Defendant 2 is that Defendant 1 inflicted an injury on Defendant 2 by pushing Defendant 2’s chest with elbow.

On the other hand, the facts charged against Defendant 2 are as follows: when Defendant 2 suffered the above injury, Defendant 1 injured Defendant 1 by means of garbage, thereby impairing Defendant 1’s honor, and Defendant 1 injured Defendant 2.

In light of the aforementioned facts charged in itself, the arguments favorable to one of the Defendants may result in unfavorable consequences to the other Defendant. Therefore, the interests of the Defendants conflict.

C. Designation of Defendant 2 (Attorney Lee Jong-soo)

1) The record reveals the following facts.

A) After the judgment of the court of first instance was rendered, Defendant 2 and Nonindicted 1 Law Firm jointly submitted a letter of appointment of counsel to the court of first instance. The phrase “case” in the above document states “Appeal”, and the main text states “I will submit a letter of appointment of counsel because I appointed Nonindicted 2, Nonindicted 3, Nonindicted 4, Nonindicted 5, and Nonindicted 6 as counsel regarding the above case.”

B) At the time when the above letter of appointment of counsel was submitted, the “written designation of the person in charge” under the name of Nonindicted 1 Law Firm was submitted, and the “person in charge” column of the above letter of appointment is indicated only as “Nonindicted 2”.

C) Subsequent to the lower court’s submission of the grounds of appeal for Defendant 2 in the name of Nonindicted 1 Law Firm. In the last part of the said grounds of appeal, the grounds of appeal stated “Nonindicted 2, Nonindicted 3, Nonindicted 4, Nonindicted 5, and Nonindicted 6” as the attorney at the bar, and affixed the seals of each attorney.

2) The main text of Article 50(1) of the Attorney-at-Law Act provides, “A law firm shall perform its duties in its name and designate an attorney-at-law to be in charge of its duties,” and Article 50(7) of the same Act provides, “A law firm shall indicate its name and affix its signature and seal or sign to the document prepared by it in connection with its duties.” With respect to the method of designating an attorney-at-law, there is no provision in the Attorney-at-law Act or its Enforcement Decree. In addition, in addition to these circumstances, the name of the attorney-at-law is indicated in the part on which the attorney was appointed by the attorney-at-law. In addition, considering the above part on the indication of the attorney-at-law in the above statement of grounds for appeal, the above written appointment of the attorney-at-law is indicated as the attorney

D. Appointment of a state appointed defense counsel for Defendant 1

According to the records, Defendant 1 submitted a written request for the appointment of a state appointed defense counsel to the court below after the submission of the above written request for appointment of a state appointed defense counsel, and the court below appointed Nonindicted 5 as Defendant 1’s state appointed defense counsel.

E. Infringement of Defendant 1’s right to have the substantial assistance of a public defender

As seen earlier, there is a conflict of interest among the Defendants. While Defendant 2 appointed Nonindicted 1 Law Firm as a defense counsel and appointed Nonindicted 5 as a defense counsel by the said law firm, the lower court’s appointment of the same attorney as a public defender for Defendant 1 infringes on Defendant 1’s rights to receive the substantial assistance of a public defender as seen earlier. Therefore, the lower court erred by misapprehending the legal doctrine on the right to receive the assistance of a public defender, thereby adversely affecting the conclusion of the judgment.

2. As to Defendant 2’s ground of appeal

Even if examining the reasoning of the lower judgment based on evidence, the lower court did not exhaust all necessary deliberations, contrary to what is alleged in the grounds of appeal, and did not err by misapprehending the legal doctrine on facts or by misapprehending the rules of logic and experience.

3. Conclusion

Therefore, without examining the remaining grounds of appeal by Defendant 1, the part on Defendant 1 among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. Defendant 2’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)