Open Decision Ledger · Criminal & investigative procedure
Mental impairment suspicion as a case of mandatory defence
Supreme Court, Aug. 31, 2023, 2023Do7561 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 성폭력범죄의처벌등에관한특례법위반(성적목적다중이용장소침입)
Official text on the National Law Information Center
Question
Does 'a case in which the defendant is suspected of mental impairment' under Article 33(1)(v) of the Criminal Procedure Act include a case in which the accused's state of consciousness or ability to distinguish objects and control conduct is suspected to be absent or diminished, so that there is a risk that the accused cannot effectively exercise the right of defence at the trial stage?
Holding
Yes. The Court held that the expression covers not only a case in which an objective document such as a diagnosis or psychiatric examination establishes or supports a state of mental impairment, but also a case in which, on the whole of the circumstances shown in the file and the supporting materials, the accused's state of consciousness or ability to distinguish objects and control conduct is suspected to be absent or diminished, with a risk that the accused cannot effectively exercise the right of defence at the trial stage. On this record it could not be excluded that the state continued into the appellate trial stage, so the case was likely to be one of mandatory defence, and proceeding to trial without appointing counsel made the procedure unlawful and the acts done in it void.
Points at issue, verbatim
범행 당시의 심신장애 상태가 원심 공판심리단계에서도 계속되어 피고인이 공판심리단계에서 효과적으로 방어권을 행사하지 못할 우려가 있었을 가능성이 있고, 이는 형사소송법 제33조 제1항 제5호의 ‘심신장애의 의심이 있는 때’에 해당한다고 볼 여지가 충분한데도, 변호인이 선임되지 않은 피고인에 대하여 국선변호인을 선정하지 아니한 채 공판절차를 진행한 원심판결에 법령을 위반한 잘못이 있다고 한 사례
Unofficial English translation
it was possible that the state of mental or physical disorder existing at the time of the offense continued through the trial stage of the court below, giving rise to concern that the defendant might be unable to effectively exercise the right of defense at the trial stage, and there was ample room to regard this as falling within "where there is a suspicion of a mental or physical disorder" under subparagraph 5 of paragraph (1) of Article 33 of the Criminal Procedure Act, and yet the judgment of the court below erred in violation of statutes and regulations by conducting the trial procedure against the defendant, who had not retained counsel, without appointing assigned counsel
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 인천지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Incheon District Court.
Form of the test
Elements stated Stated in the decision
법원이 국선변호인을 반드시 선정해야 하는 사유로 형사소송법 제33조 제1항 제5호에서 정한 ‘피고인이 심신장애의 의심이 있는 때’라 함은 진단서나 정신감정 등 객관적인 자료에 의하여 피고인의 심신장애 상태를 확신할 수 있거나 그러한 상태로 추단할 수 있는 근거가 있는 경우는 물론,
Unofficial English translation
"Where there is a suspicion that the defendant has a mental or physical disorder," as provided in subparagraph 5 of paragraph (1) of Article 33 of the Criminal Procedure Act, which sets forth a ground for which the court must necessarily appoint assigned counsel, refers to cases in which it is possible to be certain of the defendant's state of mental or physical disorder, or in which there is a ground for inferring such a state, on the basis of objective materials such as a medical certificate or a psychiatric evaluation, as well as,
Factors
- 성폭력범죄의 처벌 등에 관한 특례법 위반의 공소사실로 기소된 사안에서
- 여자사우나 안으로 몰래 들어가 그곳 입구에서 자위행위를 하다가 현행범으로 체포되어
- 제반 사정에 비추어
- 범행 당시의 심신장애 상태가 원심 공판심리단계에서도 계속되어
- 피고인이 공판심리단계에서 효과적으로 방어권을 행사하지 못할 우려가 있었을 가능성이 있고
Unofficial English translation
• in a case in which the defendant was prosecuted on the facts charged as a violation of the Act on Special Cases Concerning the Punishment of Sexual Crimes,
• having secretly entered a women's sauna and engaged in masturbation at the entrance there, was apprehended in the act,
• in light of all the circumstances,
• the state of mental or physical disorder existing at the time of the offense continued through the trial stage of the court below,
• giving rise to concern that the defendant might be unable to effectively exercise the right of defense at the trial stage, and
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2019. 9. 26. 선고 2019도8531 판결(공2019하, 2071)
Unofficial English translation
Supreme Court Decision 2019Do8531 decided September 26, 2019 (Gong 2019 Ha, 2071)
Decisions referred to
[1] 대법원 2019. 9. 26. 선고 2019도8531 판결(공2019하, 2071)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
What material must show that the suspected state of mental impairment continued into the trial stage before the case is treated as one of mandatory defence?
The remand judgment of the Incheon District Court, once the case is reheard with counsel, will show how the requirement was met on this record. Any amendment to Article 33(1)(v) or Article 282 of the Criminal Procedure Act, or a later decision departing from Supreme Court Decision 2019Do8531, would call for a fresh reading.
Cross-family AI independent reading & axis check
8 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on all 8 axes.
Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Incheon District Court, sitting on appeal in its judgment of 19 May 2023 (2022No2538), held that at the time of the offence the accused's ability to distinguish objects or determine his will was weak because of paraphilic disorder, reversed the first-instance judgment and sentenced him to four months' imprisonment. Only the accused had appealed, on misdirection on diminished mental capacity and an excessive sentence. At the hearing of 28 April 2023 the court proceeded and closed the argument without appointing counsel for the accused, who had none.
Supreme Court standard: The Supreme Court held that the content of the offence and the similar prior offences, the psychiatric diagnosis and the period and content of treatment, and the mental disorder, intelligence and social adaptation level confirmed by the psychiatric examination, taken with the law set out above, meant that it could not be excluded that the state of mental impairment continued into the appellate trial stage, and that there was ample ground to find a suspicion of mental impairment under Article 33(1)(v). Proceeding to trial without appointing counsel for an unrepresented accused was contrary to the Criminal Procedure Act and unlawful, and the procedural acts done in that hearing had to be treated as void, so the judgment was reversed and the case remanded to the Incheon District Court.
Distinguishing conditions
- A case in which neither a diagnosis or psychiatric examination nor the circumstances of the offence, its content, method and the conduct before and after it, gives grounds to suspect a state of mental impairment.
- A case in which a suspected state of mental impairment does not raise a risk that the accused cannot effectively exercise the right of defence at the trial stage.
- A case in which a defence counsel is already retained, since the finding concerns the failure to appoint counsel for an accused who had none.
Record verification notes
Set the file against each circumstance the Court listed: the content of the offence and the prior similar offences, the diagnosis of 2 November 2021 and the psychiatric treatment from 15 October 2019 to 17 December 2021, and the results of the psychiatric examination at the first instance, including intelligence and social adaptation. Then check every hearing date for whether counsel was retained or appointed, since the unlawful step was the trial conducted on 28 April 2023 without counsel. The decision applied Article 12(4) of the Constitution and Article 33 and Article 282 of the Criminal Procedure Act, read with Supreme Court Decision 2019Do8531.
From the official text
Points at issue
[1] 법원이 국선변호인을 반드시 선정해야 하는 사유로 형사소송법 제33조 제1항 제5호에서 정한 ‘피고인이 심신장애의 의심이 있는 때’의 의미 및 피고인의 의식상태나 사물에 대한 변별능력, 행위통제능력이 결여되거나 저하된 상태로 의심되어 피고인이 공판심리단계에서 효과적으로 방어권을 행사하지 못할 우려가 있다고 인정되는 경우가 이에 포함되는지 여부(적극) [2] 피고인이 여자사우나 안으로 몰래 들어가 그곳 입구에서 자위행위를 하다가 현행범으로 체포되어 성폭력범죄의 처벌 등에 관한 특례법 위반의 공소사실로 기소된 사안에서, 제반 사정에 비추어, 범행 당시의 심신장애 상태가 원심 공판심리단계에서도 계속되어 피고인이 공판심리단계에서 효과적으로 방어권을 행사하지 못할 우려가 있었을 가능성이 있고, 이는 형사소송법 제33조 제1항 제5호의 ‘심신장애의 의심이 있는 때’에 해당한다고 볼 여지가 충분한데도, 변호인이 선임되지 않은 피고인에 대하여 국선변호인을 선정하지 아니한 채 공판절차를 진행한 원심판결에 법령을 위반한 잘못이 있다고 한 사례
Unofficial English translation
[1] The meaning of the phrase "where there is a suspicion that the defendant has a mental or physical disorder," as provided in subparagraph 5 of paragraph (1) of Article 33 of the Criminal Procedure Act, which sets forth a ground for which the court must necessarily appoint assigned counsel, and whether this includes cases where the defendant is suspected of being in a state in which his or her state of consciousness, or ability to distinguish things or to control conduct, is lacking or impaired, giving rise to concern that the defendant may be unable to effectively exercise the right of defense at the trial stage (affirmative) [2] A case in which the defendant, having secretly entered a women's sauna and engaged in masturbation at the entrance there, was apprehended in the act and prosecuted on the facts charged as a violation of the Act on Special Cases Concerning the Punishment of Sexual Crimes, where, in light of all the circumstances, it was possible that the state of mental or physical disorder existing at the time of the offense continued through the trial stage of the court below, giving rise to concern that the defendant might be unable to effectively exercise the right of defense at the trial stage, and there was ample room to regard this as falling within "where there is a suspicion of a mental or physical disorder" under subparagraph 5 of paragraph (1) of Article 33 of the Criminal Procedure Act, and yet the judgment of the court below erred in violation of statutes and regulations by conducting the trial procedure against the defendant, who had not retained counsel, without appointing assigned counsel
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결을 파기하고, 사건을 인천지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Incheon District Court.
Provisions referred to
[1] 헌법 제12조 제4항, 형사소송법 제33조, 제282조 [2] 헌법 제12조 제4항, 형사소송법 제33조, 제282조
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