Supreme Court: "Submitting Evidence in First Trial but Not Appointing Public Defender in Second Trial Is Illegal"

Supreme Court Grand Bench. / Photo by Supreme Court Provided.

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] The Supreme Court has ruled that it was illegal for the appellate court to proceed with the trial after dismissing the defendant's request for court-appointed counsel on the grounds that no supporting documents were submitted, despite the defendant having already submitted evidence of financial hardship when requesting court-appointed counsel during the first trial.

The Supreme Court's First Division (Presiding Justice Kim Seon-su) announced on the 3rd that it overturned the original ruling that sentenced Mr. A to a fine of 5 million won in his appeal trial on charges of violating the Information and Communications Network Act (repeated transmission of words causing anxiety) and threats, and remanded the case to the Seoul Southern District Court.

The court stated, "Under the Criminal Procedure Act, if a defendant cannot hire a lawyer due to poverty or other reasons, the court must appoint a lawyer upon the defendant's request. While it is generally required that the defendant submit supporting documents regarding the reason when requesting court-appointed counsel, this is not necessary if the reason is recognized as proven by the records."

Article 33 of the Criminal Procedure Act stipulates in paragraph 1 that when ▲ the defendant is detained ▲ is a minor ▲ is 70 years or older ▲ has disabilities in hearing or speaking ▲ is suspected of having mental or physical disabilities ▲ or is charged with a case punishable by death, life imprisonment, or imprisonment for three years or more, the court shall appoint a (court-appointed) lawyer ex officio if the defendant has no lawyer.

Paragraph 2 of the same article states, "If the defendant cannot hire a lawyer due to poverty or other reasons, the court shall appoint a lawyer upon the defendant's request."

Furthermore, Article 17-2 of the Criminal Procedure Rules (Submission of Supporting Documents for Requesting Court-Appointed Counsel) states, "When requesting court-appointed counsel under Article 33, Paragraph 2 of the Act, the defendant must submit supporting documents. However, this does not apply if it is recognized that the reason has been proven by the records."

In other words, except when the court must appoint a lawyer ex officio, if the defendant requests court-appointed counsel, they must submit evidence proving reasons such as poverty that prevent hiring a lawyer. However, if it is recognized from the records that the reason has already been proven, the obligation to submit supporting documents is waived.

The Supreme Court pointed out this issue and concluded that there was a problem with the appellate court's ruling.

The court noted, "According to the records, although the defendant did not submit supporting documents when requesting court-appointed counsel in the second trial, it is evident that he had already submitted evidence in the first trial proving that he was a beneficiary under the National Basic Living Security Act. Therefore, the defendant's request for court-appointed counsel is recognized in the records as having proven that 'due to the current family circumstances, it is difficult to personally hire a private lawyer.' Accordingly, the appellate court should have appointed court-appointed counsel and allowed the appointed lawyer to participate in the trial unless there were special circumstances."

It continued, "Nevertheless, the appellate court dismissed the defendant's request for court-appointed counsel and proceeded with the trial without a lawyer, which violates the provisions of the Criminal Procedure Act regarding court-appointed counsel. This resulted in the defendant being unable to exercise effective defense rights with the assistance of court-appointed counsel, affecting the judgment and constituting an illegal act."

Mr. A, who operated an IT company, entered into a management rights acquisition contract with Company C, represented by Mr. B, in 2015 and merged his company with Company C.

Subsequently, Mr. A filed a civil lawsuit claiming he was supposed to receive 100 million won at the time of the contract, but when Mr. B did not pay, Mr. A decided to pressure him by threatening to report alleged corruption in the company’s operations. From April 2018 to March 2020, he sent a total of 174 threatening text messages repeatedly to Mr. B and was prosecuted for this.

The first trial sentenced Mr. A to a fine of 5 million won, stating, "Considering the content and frequency of the messages and the mental distress suffered by the victim, strict responsibility must be imposed."

In the second trial, Mr. A requested court-appointed counsel, but the appellate court dismissed the request on the grounds that no evidence proving the reason was submitted. The trial proceeded with only Mr. A present without a lawyer, and the appellate court dismissed his appeal, upholding the first trial's ruling.

The appellate court explained, "The defendant is a wage recipient, and before the original judgment was announced, the Central Labor Commission ruled that the dismissal of the defendant by Company C, where the victim is the CEO, was unfair dismissal. However, no agreement was reached with the victim, and there are no new special circumstances favorable to the defendant’s sentencing after the original judgment."

However, the Supreme Court judged that this appellate court ruling violated the Criminal Procedure Act regarding court-appointed counsel.

This content was produced with the assistance of AI translation services.