In a case where the first instance court sentenced a suspended execution but only the prosecutor appealed on the ground of unfair sentencing, if the appellate court accepted the prosecutor's appeal against the defendant who was not appointed by his defense counsel and sentenced the sentence, the method of appointing a desirable

Article 12(4) of the Constitution provides, “Any person who is arrested or detained shall have the right to prompt assistance of counsel.” The Criminal Procedure Act provides, “In order to guarantee the right to assistance of counsel guaranteed by the Constitution, a defense counsel shall be appointed ex officio to the suspect who is to be examined (Article 201-2(8)),” and Article 33(1)1 of the Criminal Procedure Act provides, “Where the defendant is detained, a court shall appoint a defense counsel ex officio if he/she does not have a defense counsel.” (Article 33(1)1) of the Constitution provides, “The right to receive assistance of counsel and various provisions of the Criminal Procedure Act, in particular, Articles 70(1) and 201(1) of the Criminal Procedure Act share the detention of the defendant and the detention of the suspect, and the purport of the public defender system, etc., the first instance court has sentenced the suspension of execution against the defendant, but only the public defender has appealed on the grounds of unfair sentencing.”

Article 12(4) of the Constitution of the Republic of Korea; Articles 33(1)1 and (3), 70(1), 201(1), and 201-2(8) of the Criminal Procedure Act

Defendant

Defendant

Attorney Lee Jae-hoon

Busan District Court Decision 2015No3740 decided May 13, 2016

The appeal is dismissed.

The grounds of appeal are examined.

1. Article 33(1) and (3) of the Criminal Procedure Act provides that the court shall appoint a defense counsel ex officio. Article 33(1) and (3) provides that the court shall appoint a defense counsel if only a defense counsel falls under any of the subparagraphs of paragraph (1). On the other hand, Article 3(3) provides that a defense counsel shall be appointed within the extent that does not go against the express will of the defendant, unless a case falls under any of the subparagraphs of Article 33(1) of the Criminal Procedure Act, unless a case falls under any of the subparagraphs of paragraph (1) of the same Article. Unless a case falls under any of the subparagraphs of paragraph (1) of the same Article, a court may not appoint a defense counsel if it deems it necessary for protecting the rights of the defendant, and even if a trial is conducted without the appointment of a public defender, if it is not recognized that the defendant's defense right is infringed and affected the judgment, it does not violate Article 33(3) of the Criminal Procedure Act

2. According to the records, the first instance court, after recognizing the facts charged, closed the pleadings through the examination of evidence, ordered the defendant to suspend the execution of the above punishment for 2 months at the time of his imprisonment with prison labor for 6 months, suspended the participation in the sexual assault treatment lecture for 40 hours and rendered a judgment ordering community service for 80 hours. The prosecutor appealed from the first instance court on the grounds of unfair sentencing. The court of first instance ordered the sentencing investigator to investigate the sentencing while conducting the trial without a state appointed counsel. The court of first instance, while continuing the pleadings at the request of the defendant for agreement, continued the pleadings at the request of the defendant, terminated the first instance court's appeal, reversed the first instance judgment by accepting the prosecutor's appeal for unfair sentencing, and dismissed the first instance judgment and the defendant's decision ordering the completion of the sexual assault treatment program for 40 hours at the request of the defendant, and immediately

Examining these facts in light of the legal principles as seen earlier, the lower court’s judgment and measures that have detained the Defendant without a public defender for the protection of the rights of the Defendant, and sentenced to imprisonment after conducting the trial without the appointment of a public defender, thereby infringing on the right to assistance of counsel or the right to defense of the Defendant, or misapprehending the legal principles on Article 33(3) of the Criminal Procedure Act, thereby adversely affecting the judgment

However, Article 12(4) of the Constitution provides, “Any person who is arrested or detained shall have the right to prompt assistance of counsel.” The Criminal Procedure Act provides, “In order to guarantee the right to assistance of counsel guaranteed by the Constitution, a defense counsel shall be appointed ex officio to the suspect who is to be examined (Article 201-2(8)),” and Article 33(1)1 of the Criminal Procedure Act provides, “If the defendant is detained, a court shall appoint a defense counsel ex officio if he/she does not have a defense counsel (Article 33(1)1)).” The above constitutional right to receive assistance of counsel and various provisions of the Criminal Procedure Act, in particular, Articles 70(1) and 201(1) of the Criminal Procedure Act share the detention of the defendant and the suspect, and in the case of the defendant, it is desirable for the first instance court to suspend the execution of the sentence against the defendant, but only the prosecutor of the appellate court shall appoint a defense counsel within the scope of ex officio prior to the trial of the defendant for reasons for unfair sentencing.”

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

Justices Lee Sang-hoon (Presiding Justice)