[edit] Supreme Court Order 2000Mo66 dated November 28, 2000 [Re-appeal against the order to dismiss appeal]

【Main Issues】

Regarding the application for appointment of a public defender due to the defendant's poverty, the court has delayed the appointment and appointed a public defender without justifiable reason after the passage of the application period for the appeal, and thus, whether or not the court should accept or reject the application for appeal when the application period for appeal has elapsed without a state-appointed defense attorney's assistance in drafting and submitting the grounds for appeal

【Summary of Decision】

Even though the defendant applied for the appointment with sufficient time for application and preparation for appeal with help of the public defender when the defendant applied for a public defender due to poverty, the court delayed the motion without justifiable reasons and the period for the application for appeal has passed, and a public defender was appointed thereafter. Therefore, if the application period for grounds for appeal has passed without any help from an attorney which is necessary for preparation and application for the grounds for appeal, this is equivalent to an infringement by the court of the defendant's right to receive help from an attorney. Even if there is no application for appeal by the defendant during the application period for appeal, there should not be a dismissal of the defendant's appeal for the reasons above. In a case like this, there should be an opportunity for the defendant to apply for an appeal by measuring from the date of notification of the "trial record registration notification" to the public defender by applying Article 156-2 of Regulations on the Criminal Procedure. In case only when there is no application for appeal by the public defender within the prescribed period after the granting of the opportunity like above, there can be a decision to dismiss the appeal and this interpretation is in accordance with the intent of the constitution which provides that the defendant's right to receive assistance from an attorney is a basic right.

【Reference Provisions】 Paragraph 5 of Article 33, Article 358 and Article 361-4 of the Criminal Procedure Act, Article 156-2 of the Rules on the Criminal Procedure

Article 33 of the Criminal Procedure Act (Defense Counsel Appointed by State) In the following cases, if there is no defense counsel, the court shall appoint a public defender:

1.~4. <omitted>

5. Where the defendant is unable to appoint a defense counsel because of poverty or any other reason; provided, that this shall apply only in case where a request is made by the defendant.

Article 358 of the Criminal Procedure Act (Time-Limit for Appeal) The period allowed for appeal shall be seven days.

Article 361-4 of the Criminal Procedure Act (Ruling Dismissing Appeal) (1) If either the appellant or his defense counsel has failed to submit a statement of grounds for appeal within the period as set forth in paragraph (1) of the preceding Article, the appeal court shall dismiss the appeal by means of a ruling; provided, that this provision shall not apply where there exists a fact to be examined ex officio, or when a ground for appeal is stated on the petition of appeal.

(2) Immediate appeal may be filed against a ruling under the preceding paragraph.

Article 156-2 of the Regulations on the Criminal Procedure (Appointment of Public Defender and Notice of Reception of Trial Record) The appellate court, which has received the trial record shall appoint a defense counsel and notify him of the reception of the trial record if no defense counsel exists for the cases requiring presence of the defense counsel indicated in items 1 through 4 of Article 33 and Article 282 of the Act.

【Re-appellant】 Re-appellant

【Court of First Instance】 Milyang Branch of Changwon District Court Judgment 99Godan352 delivered on November 11, 1999

【Court of Second Instance】Changwon District Court Judgment 99No2298 delivered on April 11, 2000

【Disposition】 The court below's judgment shall be reversed. The case shall be remanded to the Appellate Division of Changwon District Court.

【Reasoning】 The grounds for re-appeal are examined as follows.

Even though the defendant applied for the appointment with sufficient time for application and preparation for appeal with the public defender's assistance when the defendant applied for a public defender due to poverty, the court delayed the motion without justifiable reasons and the period for application for appeal has passed, and a public defender was appointed thereafter. Therefore, if the application period for grounds for appeal has passed without any help from an attorney which is necessary for preparation and application for the grounds for appeal, this is equivalent to an infringement by the court of the defendant's right to receive help from an attorney. Even if there is no application for appeal by the defendant during the application period for appeal, there should not be a dismissal of the defendant's appeal for the reasons above. In a case like this, there should be an opportunity for the defendant to apply for an appeal by measuring from the date of notification of the "trial record registration notification" to the public defender by applying Article 156-2 of Regulations on the Criminal Procedure. In case only when there is no application for appeal by the public defender within the prescribed period after the granting of the opportunity like above, there can be a decision to dismiss the appeal and this interpretation is in accordance with the intent of the constitution which provides that the defendant's right to receive help from an attorney is a basic right.

According to the records, the re-appellant, after receiving delivery of the trial record registration notification from the court below on November 30, 1999 which was subsequent to the appeal for the case, applied for the appointment of a public defender under item 5 of Article 33 of the Criminal Procedure Act, with the reason of "difficult to appoint a private defender due to domestic financial difficulty." The defendant applied prior to December 7, 1999, that is before the elapse of the application period for appeal, in accordance with the public defender appointment notice that was sent with the trial record registration notification above. However, even though the court accepted the application, the court delayed the decision for appointment without any reason, and eventually decided to appoint appointment of public defender for the re-appellant after January 18, 2000, which is after the passage of the application period for appeal. Thus, the application period for appeal passed without any help from an attorney that is necessary for preparation and application for an appeal.

In such a case, the reasons for not receiving any help from a public defender regarding application and preparation for appeal is not due to the fault of the re-appellant, but it was caused by the delayed appointment decision by the court below. The court below, in accordance with item 2 of Article 156 of Criminal Procedure Act, should separately forward the trial record registration notification to the public defender and provide an opportunity for the public defender to provide the grounds for appeal, and this will enable the re-appellant to receive help from the public defender.

Nevertheless, the court below did not follow the procedure above, and the court dismissed the appeal for the re-appealing party with the decision in accordance to Article 361-4 of Criminal Procedure Act, with the only reason that there is no appropriate application for the appeal from the re-appellant within the application period for appeal. This shall be considered as violation of law that affected the judgment of the court by misunderstanding Article 361-4 of the Criminal Procedure Act. The reason for re-appeal shall be justified.

Therefore, the judgment of the court below shall be reversed and the case shall be remanded to the court below for retrial and determination based on the unanimous opinion of the participating Justices as reflected in the Disposition.

Justices Lee Yong-woo (Presiding Justice)

Cho Moo-jeh

Kang Shin-wook

Lee Kang-kook (Justice in charge)

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