I applied to be selected as a public defender, but was sentenced without judgment… Supreme Court "infringes on the right to defense"

(Seoul = Yonhap News) Reporter Lee Mi-ryeong = The Supreme Court ruled that the defendant, who was sentenced to prison in the first trial, requested the appointment of a public defender in the appellate trial, but the court erred in sentencing him without making any decision.

According to the legal community on the 11th, the 3rd Division of the Supreme Court (Chief Justice Eom Sang-pil) overturned the original trial ruling that sentenced Mr. A to three months in prison for violating the Child Support Act last month and sent the case back to the Incheon District Court.

Mr. A did not properly pay child support (500,000 won per person per month) for the two minor children that he had agreed to pay when divorcing his spouse by agreement.

He was indicted for failing to fulfill his obligations within one year without justifiable grounds, even though he received a performance order and detention order from the family court.

In the written opinion submitted by Mr. A to the court of first trial, it was stated that 'I work as a delivery worker and live in a house with a deposit of 400,000 won and a monthly rent of 400,000 won, and I was unable to fulfill my obligation to pay child support due to my poor living conditions.'

The first trial found Mr. A guilty of the indictment in August last year and sentenced him to three months in prison, but did not arrest him.

Mr. A appealed and requested the selection of a public defender, but did not submit any explanatory materials regarding the reason for the request.

Article 17-2 of the Criminal Procedure Rules states that when a defendant requests the selection of a public defender, he or she must submit explanatory materials, and exceptions are recognized only when it is recognized that the reasons have been explained by the records.

The second trial dismissed Mr. A's appeal after conducting a hearing in the absence of a lawyer without making any decision on the request for selection of a public defender, and detained Mr. A in court immediately after the verdict was announced.

Mr. A appealed again, and the Supreme Court ruled that the lower court's action of not making any decision on Mr. A's request to select a public defender "was an error that caused a substantial hindrance to the exercise of the right to defense."

Even if Mr. A did not submit explanatory materials regarding the reason for selecting a public defender, the purpose is that if the records show that it is difficult to appoint a private defender, a public defender should have been selected.

The Supreme Court stated, "Although explanatory materials were not submitted, there is ample room to believe that the case record containing the defendant's statement, etc., demonstrated the reason that 'it is difficult for the defendant to appoint a private attorney due to family circumstances, etc.'"

He continued, "Even if the explanation regarding the cause of poverty is somewhat lacking, considering the defendant's level of education and family relationship as shown in the records, the details of the indictment, and the severity of the sentence handed down in the first trial, there is room to believe that it is a case where a public defender must be selected to protect the defendant's rights."