Open Decision Ledger · Criminal & investigative procedure
Mandatory defence for a defendant held on another offence
Supreme Court, July 11, 2024, 2024Do6203 (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: 사기
Official text on the National Law Information Center
Question
Does the phrase 'the defendant is detained' in Article 33(1)(i) of the Criminal Procedure Act reach a defendant confined by execution of a detention warrant issued for a separate offence or by execution of a final guilty judgment in another case, and when the first-instance trial of a mandatory defence case was held without counsel, are all the acts of trial void and what must the appellate court do?
Holding
It reaches both. Reading the wording of Article 33(1)(i) of the Criminal Procedure Act together with the constitutional rights considered in its enactment and the position of the defendant, the Court held that a defendant confined by execution of a detention warrant issued for a separate offence, or by execution of a final guilty judgment in another case, also falls within 'the defendant is detained'. Where the first-instance trial of a mandatory defence case was held without counsel, every act of trial that followed, including the examination of evidence and the questioning of the defendant, is void; the appellate court must hold new proceedings with counsel, reverse the unlawful first-instance judgment and decide again on the basis of the trial it conducted.
Points at issue, verbatim
피고인이 별건으로 구속영장이 발부되어 집행되거나 다른 형사사건에서 유죄판결이 확정되어 그 판결의 집행으로 구금 상태에 있는 경우도 포괄하는지 여부(적극)
Unofficial English translation
whether it also encompasses cases where an arrest warrant has been issued and executed against the defendant in a separate case, or where the defendant is confined by virtue of the execution of a conviction that has become final in another criminal case (affirmative)
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
형사소송법 제33조 제1항 제1호가 필요적 국선변호인 선정사유 중 하나로 정하고 있는 ‘피고인이 구속된 때’라고 함은 피고인이 해당 형사사건에서 구속되어 재판을 받고 있는 경우에 한정된다고 볼 수 없고
Unofficial English translation
The phrase 'where the defendant is under custody,' which Article 33 (1) 1 of the Criminal Procedure Act prescribes as one of the grounds for mandatory designation of a court-appointed defense counsel, cannot be regarded as limited to cases where the defendant is under custody and being tried in the relevant criminal case, and
Factors
- ‘피고인이 구속된 때’가 피고인이 해당 형사사건에서 구속되어 재판을 받고 있는 경우에 한정되는지 여부(소극)
- 필요적 변호사건에서 제1심의 공판절차가 변호인 없이 이루어져 증거조사와 피고인신문 등 심리가 이루어진 경우
- 제1심이 행한 소송행위의 효력(무효) 및 이때 항소심이 취해야 할 조치
Unofficial English translation
• Whether the phrase 'where the defendant is under custody' is limited to cases where the defendant is under custody and being tried in the relevant criminal case (negative)
• Where, in a case requiring mandatory counsel, the trial procedures in the court of first instance were conducted without counsel and the examination, including the taking of evidence and the examination of the defendant, was carried out
• The effect of the acts of litigation performed by the court of first instance (void) and the measures the appellate court must take at that time
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2024. 5. 23. 선고 2021도6357 전원합의체 판결(공2024하, 945)
Unofficial English translation
Supreme Court en banc Decision 2021Do6357 decided May 23, 2024 (Gong 2024 Ha, 945)
Decisions referred to
[1] 대법원 2024. 5. 23. 선고 2021도6357 전원합의체 판결(공2024하, 945) / [2] 대법원 1995. 4. 25. 선고 94도2347 판결(공1995상, 2010), 대법원 2015. 12. 24. 선고 2015도10544 판결
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
If the defendant was held by arrest alone rather than under a detention warrant when the first-instance trial opened, does the same mandatory defender requirement apply?
The judgment the Incheon District Court delivers on remand, once it holds a new trial with counsel and decides on that trial, will show how the void acts are replaced. Any amendment to Article 33(1)(i) or Article 282 of the Criminal Procedure Act, or a later decision on a defendant held by arrest alone, would require this entry to be read again.
Cross-family AI independent reading & axis check
7 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 7 of the 8 axes; the readings differed on axis 8 (open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “If the defendant was held by arrest alone rather than under a detention warrant when the first-instance trial opened, does the same mandatory defender requirement apply?” vs Independent “What specific procedures must the remand court use to conduct the previously invalid evidence examination anew with counsel present?”
The primary reading asks whether mere arrest without a detention warrant triggers the same requirement, while the independent reading asks what procedure the remand court must follow to redo the evidence examination.
피고인이 별건으로 구속영장이 발부되어 집행되거나 다른 형사사건에서 유죄판결이 확정되어 그 판결의 집행으로 구금 상태에 있는 경우도 포괄하는지 여부(적극)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, hearing together the appeals against both first-instance judgments in its judgment of 12 April 2024 (2023No2551, 5220), held that the offences stood in concurrence under the main sentence of Article 37 of the Criminal Act, so that one sentence had to be imposed. It reversed both first-instance judgments and imposed 2 years and 4 months' imprisonment, taking the gist of the evidence for the offences directly from the corresponding columns of the first-instance judgments. At the appellate stage it held the trial with a public defender, told counsel the gist of the evidence and the results of the examination below, asked for comment and gave notice that counsel could apply for further evidence.
Supreme Court standard: The Supreme Court held that the defendant was confined when the second first-instance trial began, so that case was a mandatory defence case under Articles 282 and 33(1)(i) of the Criminal Procedure Act, and the trial held without counsel was wholly void. The appellate court should have conducted new proceedings with counsel, reversed the unlawful second first-instance judgment and decided again on the evidence and statements heard at the appellate stage; by taking the acts below to be valid and sentencing on the evidence they examined, it misread the law on the effect of acts taken without counsel and thereby affected the judgment. Because the second first-instance portion had to be reversed, the rest, in concurrence and sharing one sentence, was reversed with it, and the whole judgment was reversed and remanded to the Incheon District Court without deciding the grounds of appeal.
Distinguishing conditions
- A defendant who was not confined at all when the first-instance trial began, since the rule turns on the defendant being in custody under Article 33(1)(i).
- A mandatory defence case in which the first-instance trial was conducted with a retained or appointed counsel, so that no act of trial is void.
- An appellate judgment that already rested on a new trial held with counsel rather than on the evidence examined at first instance, since that is the course the Court said the appellate court must take.
Record verification notes
Establish from the file which detention the defendant was under when the second first-instance trial opened, whether the detention warrant was issued for a separate offence or the confinement came from execution of a final sentence, and whether counsel had been retained or appointed at that trial. Then compare the appellate judgment with the evidence it actually heard: if it adopted the evidence examined at first instance, the defect the Court found is present. Note also that the Court reversed the remainder only because the sentences stood in concurrence under the main sentence of Article 37 of the Criminal Act.
From the official text
Points at issue
[1] 형사소송법 제33조 제1항 제1호에서 정한 필요적 국선변호인 선정사유인 ‘피고인이 구속된 때’가 피고인이 해당 형사사건에서 구속되어 재판을 받고 있는 경우에 한정되는지 여부(소극) 및 피고인이 별건으로 구속영장이 발부되어 집행되거나 다른 형사사건에서 유죄판결이 확정되어 그 판결의 집행으로 구금 상태에 있는 경우도 포괄하는지 여부(적극) [2] 필요적 변호사건에서 제1심의 공판절차가 변호인 없이 이루어져 증거조사와 피고인신문 등 심리가 이루어진 경우, 제1심이 행한 소송행위의 효력(무효) 및 이때 항소심이 취해야 할 조치
Unofficial English translation
[1] Whether the phrase 'where the defendant is under custody,' which constitutes a ground for mandatory designation of a court-appointed defense counsel under Article 33 (1) 1 of the Criminal Procedure Act, is limited to cases where the defendant is under custody and being tried in the relevant criminal case (negative), and whether it also encompasses cases where an arrest warrant has been issued and executed against the defendant in a separate case, or where the defendant is confined by virtue of the execution of a conviction that has become final in another criminal case (affirmative) [2] Where, in a case requiring mandatory counsel, the trial procedures in the court of first instance were conducted without counsel and the examination, including the taking of evidence and the examination of the defendant, was carried out, the effect of the acts of litigation performed by the court of first instance (void) and the measures the appellate court must take at that time
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] 형사소송법 제33조 제1항 제1호 [2] 형사소송법 제33조, 제282조, 제370조
Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
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