[1] Where the contents of the right to assistance of counsel guaranteed by the Constitution and a public defender is appointed, both the defendant and the public defender are not required to submit the grounds for appeal, and where the reason attributable to the defendant is not revealed for failing to submit the grounds for appeal within the statutory period, the appeal court

[2] In an appellate court requiring a defense counsel, where the court below appointed a public defender after the expiry of the period for submitting the Defendant’s grounds of appeal, and notified the public defender of the receipt of the notification, but the public defender failed to submit the grounds of appeal within the statutory period, the case holding that the court below's dismissal of the appeal without taking the above measures is erroneous in the misapprehension of legal principles, on the ground that the public defender should cancel the appointment of a public defender and take a measure to appoint a new public defender

[1] [Majority Opinion] (A) The “right to have the assistance of counsel” guaranteed by the Constitution refers to the right to have the sufficient assistance of counsel, and in certain cases, the State’s duty to guarantee the defendant’s right to have the assistance of a public defender shall include the obligation to supervise the affairs and to take procedural measures necessary for the defendant to have the substantial assistance of a public defender in the criminal procedure.

(B) If a public defender appointed for the defendant fails to submit the statement of grounds for appeal within the statutory period, it shall be deemed that the public defender did not provide sufficient assistance required for the defendant, and if the appeal is dismissed pursuant to the main sentence of Article 361-4(1) of the Criminal Procedure Act even though there are no grounds attributable to the defendant, the appellate court shall dismiss the defendant's appeal, which is contrary to the constitutional purport that guarantees the defendant's right to have sufficient assistance from the public defender and stipulates the State's obligations to ensure this. Therefore, even if the defendant and the public defender fail to submit the statement of grounds for appeal within the statutory period, unless it is clearly revealed that there are grounds attributable to the defendant for the failure of the public defender to submit the statement of grounds for appeal, the appellate court shall revoke the appointment of the previous public defender and appoint a new public defender to notify the new public defender of the receipt of the notification and require the new public defender to submit

[Dissenting Opinion by Justice Jeon Soo-ahn, Justice Yang Chang-soo, Justice Lee In-bok, and Justice Lee Sang-hoon] (A) In light of the text and purport of Article 361-4(1) of the Criminal Procedure Act regarding the system for the statement of grounds for appeal, where the appellant and his defense counsel did not submit the grounds for appeal within the statutory period despite having received the records of trial from the appellate court, the appellate court shall dismiss the Defendant’s appeal unless there are grounds for ex officio examination or there are grounds for appeal in the petition of appeal stating the grounds for appeal. This is irrelevant to whether the appointed

(B) In relation to the right to assistance of counsel, the Constitution guaranteeing the defendant, etc. gives an opportunity to appoint a defense counsel and receive assistance. If the defendant is unable to seek assistance from a defense counsel on his/her own, the State is not responsible for the realization of the result of the specific defense activities of a defense counsel. The Constitution does not change on the ground that the State or the court has a certain supervisory authority, such as the appointment of a defense counsel, the cancellation of the appointment of a defense counsel, and the permission for resignation. As noted in the Majority Opinion, the guarantee of the right to assistance of a defense counsel under the Constitution does not merely belong to the appointment of a defense counsel, and thus, it is possible to request the court to exercise supervisory authority over a defense counsel within a certain scope in order to ensure its effective guarantee. However, the court in charge of a criminal trial in a neutral position does not require the defendant to take full-time guardianship measures for the defendant, or accordingly, demand the public defender to do a specific defense activity.

[2] In an appellate court requiring a defense counsel, where the court below appointed a public defender after the expiry of the period for submitting the Defendant’s grounds of appeal, and notified the public defender of the receipt of the notification, but the public defender failed to submit the grounds of appeal within the statutory period, the case holding that the court below erred by misapprehending the legal principles on the Defendant’s right to have the assistance of the public defender, and the Criminal Procedure Act, on the grounds that the new public defender did not take the above measures, and the new public defender did not submit the grounds of appeal, on the ground that the new public defender was cancelled and appointed a public defender was notified of the receipt of the notification, and that there was no reason to ex officio investigation in the first instance judgment.

[1] Article 12(4) of the Constitution of the Republic of Korea; Articles 361-3(1) and 361-4(1) of the Criminal Procedure Act / [2] Article 12(4) of the Constitution of the Republic of Korea; Articles 33(1)3, 361-3(1) and 361-4(1) of the Criminal Procedure Act

[1] Supreme Court Order 2003Mo402 dated Nov. 11, 2003 (Gong2004Sang, 271) dated May 25, 1966 (amended)

Defendant

Incheon District Court Order 2009No312 dated August 11, 2009

The order of the court below shall be reversed, and the case shall be remanded to the Incheon District Court Panel Division.

The grounds of reappeal are examined.

1. A. The main text of Article 12(4) of the Constitution provides that “Any person arrested or detained shall have the right to prompt assistance of counsel.” In light of the rule of law, the principle of due process, etc. under the Constitution of the Republic of Korea, the principle of due process, etc., the right to assistance of counsel is naturally recognized for not only the detained suspects and the accused but also the non-detained suspects and the accused (see, e.g., Constitutional Court en banc Order 2000Hun-Ma138, Sept. 23, 2004). Furthermore, in the proviso of the same Article, the Constitution provides that “if the accused cannot seek assistance of counsel by himself, the State has a defense counsel as prescribed by Act.” In certain cases, the Constitution declares that it is a public duty of the State to guarantee the accused by disclosing that he/she

However, “the right to have the assistance of counsel” guaranteed under the Constitution refers to the right to have the sufficient assistance of counsel (see Supreme Court Order 2003Mo402, Nov. 11, 2003, etc.). In certain cases, the State’s duty to guarantee the defendant’s right to have the assistance of a public defender does not merely mean the appointment of a public defender in the criminal procedure, but also includes the duty to supervise duties and take procedural measures necessary for the defendant to have the substantial assistance of a public defender.

Therefore, in order to realize the above purport and spirit of the Constitution, the Criminal Procedure Act requires the court to appoint a state appointed defense counsel ex officio or upon the defendant's request (Article 33), while prohibiting the court from amending the case in which a state appointed defense counsel is appointed without a defense counsel, if a defense counsel is not present (Articles 282, 283, 370), the Criminal Procedure Act requires the court to appoint a new state appointed defense counsel ex officio (Articles 282, 283, 370), and the rules on criminal procedure allow the court to take charge of the affairs such as cancellation of the appointment, resignation, and supervision (Articles 18 through 21).

B. Meanwhile, according to Articles 361-3(1), 361-2(1) and (2), 361-4(1) and 364(1) of the Criminal Procedure Act, where a defendant has lodged an appeal, the criminal appellate court basically decides on the grounds for appeal included in the grounds for appeal filed by the defendant or his/her defense counsel within the statutory period. If a legitimate ground for appeal has not been filed within the statutory period, the appellate court shall dismiss the defendant’s appeal in principle. As a result, the defendant has lost the opportunity to decide on the merits from the appellate court. In light of the above meaning and importance of the submission of the grounds for appeal in the appellate proceedings, the right of the defendant to receive sufficient assistance from the public defender should be guaranteed not only in the trial proceedings but also in the process of preparing and submitting the grounds for appeal.

Therefore, if a public defender appointed for the defendant fails to submit the statement of grounds for appeal within the statutory period, it shall be deemed that the court of appeals did not provide sufficient assistance required for the defendant. In such a case, if the appeal of the defendant is dismissed pursuant to the main sentence of Article 361-4(1) of the Criminal Procedure Act, unless there is any reason attributable to the defendant, it shall be deemed that the above measures are contrary to the purport of the Constitution that guarantees the defendant's right to have sufficient assistance from the public defender and stipulates the State's duty to do so. Therefore, even if the defendant and the public defender did not submit the statement of grounds for appeal within the statutory period, unless it is found that there is a reason attributable to the defendant for the failure of the public defender to submit the statement of grounds for appeal, the court of appeals shall revoke the appointment of the public defender, appoint a new public defender, and order the new public defender to submit the statement of grounds for appeal for the defendant within the period

On the contrary, the Supreme Court Order 66Mo31 dated May 25, 1966, which held that it is reasonable to decide the dismissal of a public defender pursuant to the main sentence of Article 361-4(1) of the Criminal Procedure Act, when a public defender fails to submit the grounds for appeal within the period under Article 361-3(1) of the Criminal Procedure Act, if the public defender fails to submit the grounds for appeal within the period under Article 361-3(1) of the same

2. A. According to the reasoning of the court below's order and records, the re-appellant is the defendant of this case who is dissatisfied with the judgment of the court of first instance and appealed to the court below for 70 years of age or older, and this case constitutes a requisite attorney-at-law case under Article 33 (1) 3 of the Criminal Procedure Act. The court below appointed a public defender only after the period for submitting the appellate brief expired, and did not submit the appellate brief to the public defender within the statutory period. The court below did not confirm or take into account whether there is any reason attributable to the public defender for failing to submit the appellate brief, and the court below dismissed the appeal by ruling pursuant to Article 361-4 (1) of the Criminal Procedure Act for the reason that the public defender and public defender did not submit the appellate brief ex officio, and there is no reason in the judgment of first instance.

B. Examining the above facts in light of the legal principles as seen earlier, the court below did not dismiss the Re-Appellant’s appeal pursuant to Article 361-4(1) of the Criminal Procedure Act on the ground that the Re-Appellant and the public defender did not submit the statement of reasons for appeal, unless there is any special reason attributable to the Re-Appellant regarding the non-appellant’s failure to submit the statement of reasons for appeal within the submission period. The court below did not immediately dismiss the Re-Appellant’s appeal pursuant to Article 361-4(1) of the Criminal Procedure Act on the ground that the

Therefore, the order of the court below that dismissed the re-appellant's appeal without taking such measures immediately is erroneous by misapprehending the legal principles on the defendant's right to receive assistance from a public defender under the Constitution and the Criminal Procedure Act. The Re-Appellant's assertion pointing this out is with merit.

3. Therefore, the order of the court below shall be reversed and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition.

Except for the dissenting opinion by Justice Jeon Soo-ahn, Justice Yang Chang-soo, Justice Lee In-bok, and Justice Lee Sang-hoon, the decision was delivered with all Justices.

4. Dissenting Opinion by Justice Jeon Soo-ahn, Justice Yang Chang-soo, Justice Lee In-bok, and Justice Lee Sang-hoon

A. Summary of the Dissenting Opinion

In light of the language and purport of Article 361-4(1) of the Criminal Procedure Act regarding the system for the statement of grounds for appeal, in cases where an appellant or defense counsel fails to submit the statement of grounds for appeal within the statutory period despite being notified of the receipt of the records of trial by the appellate court, the appellate court shall dismiss the appeal of the defendant, unless the grounds for ex officio investigation exist or the petition of appeal contains any statement in the grounds for appeal. There is no relation between whether a public defender has been appointed

Unlike the above, the majority opinion requires a new public defender to submit the statement of grounds for appeal by replacing a public defender to the appellate court, unless it is specifically revealed that there is any reason attributable to the defendant, unless there is any reason attributable to the defendant. Such attitude of the majority opinion is not stipulated in the relevant Acts and subordinate statutes, such as the Criminal Procedure Act, or it is an attempt to directly derive from the right to assistance of counsel in accordance with the Constitution, and it is not possible to agree on the following grounds.

B. As to guaranteeing the right to assistance of counsel under the Constitution

(1) In relation to the submission of the statement of grounds for appeal, the Majority Opinion seems to have understood that the appellate court should be responsible for the realization of the specific result of the submission of the statement of grounds for appeal by counsel under the Constitution.

However, in relation to the right to assistance of counsel, the Constitution guarantees the defendant et al. with an opportunity to appoint a counsel and receive such assistance. If the defendant et al. is unable to seek a counsel on his/her own, the State shall appoint a counsel as prescribed by law. The Constitution does not require the State or the court to assume the responsibility for the realization of the result of the specific defense activities of the counsel. The State shall not be different on the ground that the state appointed a counsel, or the court has a certain supervisory authority, such as the appointment of a public defender, cancellation of the appointment of a public defender, and the permission for resignation. As emphasized by the Majority Opinion, the guarantee of the right to assistance of a counsel under the Constitution is not only limited to the appointment of a public defender, so it is possible to request the court to exercise the supervisory authority over a counsel within a certain scope in order to ensure its effective guarantee. However, the court in charge of a criminal trial on a neutral basis does not require the public defender to take full guardianship measures for the defendant, or upon that request the public defender to conduct a specific defense activity.

Article 18(2)1 of the Regulation on Criminal Procedure provides that “When a state appointed defense counsel fails to perform his/her duties in good faith” as the grounds for revoking the appointment of a state appointed defense counsel, it shall not constitute grounds for revoking the appointment of a state appointed defense counsel (Article 18(2)1). However, even if a state appointed defense counsel neglects his/her duties and thus his/her duty is deemed to be significantly private, the court may notify the president of Korean Bar Association, etc. of the reasons therefor (Article 21) and reflects such consideration.

Nevertheless, the majority opinion emphasizes the limitation of the responsibility granted to the court in relation to the defendant's right to assistance of counsel, and emphasizes only on the constitutional basis of guaranteeing the real right, and requires the appellate court to create a guardianship duty for a new form of public defender for which the Criminal Procedure Act or the Regulation on Criminal Procedure does not stipulate, and limit the application of Article 361-4(1) of the Criminal Procedure Act to this end. This is a legislative act beyond the scope of interpretation of the law and thus cannot be agreed.

(2) In addition, the Majority Opinion is difficult to avoid criticism on the premise that the contents of the right to a trial under Article 27(1) of the Constitution concerning the right to assistance of counsel include the right to a trial in an appellate trial as a matter of course.

As long as an opportunity to comprehensively examine the factual relations and legal relations from an independent court is guaranteed in the event of a legal dispute, the specific formation of the appellate trial procedure ought to be understood as the legislative discretion, and therefore, the right to a judgment in the appellate trial cannot be necessarily guaranteed as the fundamental rights under the Constitution. This is also confirmed in the case of the Constitutional Court’s ruling on whether the appeal is unconstitutional, such as Article 380 of the Criminal Procedure Act, Article 429 of the Civil Procedure Act, which states that the right to a judgment in the appellate trial should be dismissed when the appellate brief is not filed (see, e.g., Constitutional Court en banc Order 2003Hun-Ma439, Nov. 25, 2004; Constitutional Court en banc Order 2003Hun-Ba34, Mar. 31, 2005; Constitutional Court en banc Decision 2007Hun-Ma532, Oct. 30, 2008).

As above, insofar as the right to a trial on the merits in the appellate court cannot be deemed as a constitutional fundamental right, even if the appellate court dismisses the defendant's appeal in accordance with Article 361-4 (1) of the Criminal Procedure Act, it cannot be said that the defendant's constitutional right has been infringed as alleged in the majority opinion.

C. Regarding the purpose and content of the appellate brief system

(1) As well known, the Criminal Procedure Act limits the opportunity to undergo a trial at an appellate court in certain cases by imposing the appellant the duty to submit the statement of reasons for appeal on the other hand, and by allowing the appellant to dismiss the appeal, in principle, if the obligation to submit the statement of reasons for appeal is not fulfilled. However, the purport of the Criminal Procedure Act that provides for the duty to submit the statement of reasons for appeal is to ensure the confirmation of the object to be tried at the appellate court and to ensure a prompt and smooth appellate court judgment through this determination, and to ensure the effectiveness of the system to submit the statement of reasons for appeal and to realize the above purport. The legislators have established the above statement of reasons for appeal within the framework of the Constitution, taking into account the following two factors: (a) the direction toward the structure and nature of the appellate court; (b) the reality and characteristics of our criminal justice procedure; and (c) the judicial resources that can be operated; and (d) the method of efficient distribution,

However, according to the interpretation theory of the majority opinion, in a case where a public defender is appointed, barring any special circumstance that there is a cause attributable to the defendant in the future, a decision to dismiss an appeal under Article 361-4(1) of the Criminal Procedure Act cannot be made even if the grounds for appeal are not submitted. As seen above, it would result in establishing an exception that is clearly contrary to the current system of the grounds for appeal established by legitimate legislative discretion. In addition, if there is a procedural defect in the appointment of a public defender and the notification of the receipt of the trial records, etc., if there is a procedural defect in the appointment of a public defender, etc., the deadline for submitting the grounds for appeal should be flexibly interpreted, and it would not be completely different from the flow of the Supreme Court’s decision that has mitigated the simplification of the grounds for appeal

(2) Meanwhile, while establishing the above exception, the Majority Opinion creates legal uncertainty as follows, by arbitrarily prescribing the subjects and requirements, and methods of relief, and nonetheless, no answer is presented. In other words, the case pertaining to a public defender’s failure to submit the statement of grounds of grounds of grounds of grounds of appeal. However, in a case where a private defense counsel is appointed, even if a private defense counsel fails to submit the statement of grounds of grounds of grounds of grounds of appeal within the statutory period due to a cause not attributable to the defendant, such as his/her negligence and negligence, it shall not be tried on the dismissal of grounds of appeal under Article 361-4(1) of the Criminal Procedure Act. If the Majority Opinion considers that the cases where a private defense counsel is appointed and a public defense counsel is appointed, it shall be different from the cases where the private defense counsel is appointed, and in particular, any essential difference exists in relation to the constitutional aspect of guaranteeing the right to receive the assistance of the counsel, and in particular, if the Majority Opinion considers that the legal principle of this decision should be applied, it cannot be concluded that there is no reasonable reason to dismiss the appeal.

(3) In addition, the Majority Opinion is difficult to avoid criticism that the Criminal Procedure Act has not properly considered the purport and meaning of the grounds for ex officio investigation as a basic remedy for the appellate brief system.

Article 361-4 (1) (proviso) of the Criminal Procedure Act provides minimum security devices by allowing the defendant and his/her defense counsel to leave the merits hearing through the concept of grounds for ex officio examination in cases where there are grounds for reversal in the judgment of the court of first instance. In other words, if the defendant and his/her defense counsel did not submit the grounds for appeal, and if the grounds for reversal are not discovered in the judgment of the court of first instance, it can be said that simple conclusion of a lawsuit through the dismissal of appeal is justified by taking into account the appropriate allocation of national trial capacity, rather than the necessity for the deliberation on the relevant case.

Therefore, in a case where the defendant and his defense counsel did not submit the statement of reasons for appeal, the issue of remedy for the defendant shall not be considered as a core point of view, i.e., the possibility of reversal or alteration of the judgment of the court of first instance, in a case where the defendant and his defense counsel did not submit the statement of reasons for appeal. It is excessive in the procedure to compel a public defender to replace the public defender and submit a new statement of reasons for appeal without any limit to the case where the conclusion does not change regardless of the submission of the statement of reasons for appeal, and it is not related to the guarantee of the right to receive the assistance of the counsel under the Constitution. The submission of the statement of reasons for appeal following the replacement of the public defender provided by the majority opinion is sufficient when the court of final appeal reverses the judgment of dismissal under Article 361-4(1) of the Criminal Procedure Act on the grounds of the existence of reasons for ex officio examination.

D. Conclusion of this case

Therefore, the court below's dismissal of the appeal by the Re-Appellant on the ground that the Re-Appellant and his state appointed defense counsel did not submit the grounds of appeal within the period for submitting the grounds of appeal, and that the grounds for appeal are not stated in the petition of appeal and the ex officio investigation is not found, is just, and the judgment of the court below does not constitute a violation of the Constitution, Acts, orders or rules which affected the judgment

Therefore, we express our dissent from the Majority Opinion as above.

Justices Yang Sung-tae (Presiding Justice)