Open Decision Ledger · Criminal & investigative procedure
Mandatory defence counsel where the defendant is held on another charge
Supreme Court, July 11, 2024, 2024Do6850 (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: 사기방조
Official text on the National Law Information Center
Question
Does 'the defendant is detained' in Article 33(1)(i) of the Criminal Procedure Act, a ground for appointing mandatory defence counsel, also cover a defendant held on a separate detention warrant or in custody serving a sentence on another case; and where the first-instance trial ran without counsel, what is the effect of those procedural acts and what must the appellate court do?
Holding
It covers both. Reading the wording, the legislative process and the constitutional rights of freedom of person, right to counsel and right to a fair trial together, the Court held that 'the defendant is detained' is not confined to a defendant tried while detained in that case, following Supreme Court Decision 2021Do6357 (en banc). Where the first-instance hearing ran without counsel in a mandatory defence case, every procedural act in it, including the examination of evidence and the questioning of the defendant, is void, so the appellate court must perform those acts again with counsel, reverse the unlawful first-instance judgment and decide afresh on its own hearing.
Points at issue, verbatim
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
Where, in a case subject to mandatory defense, the trial procedure of the court of first instance was conducted without counsel and examination such as the taking of evidence and the interrogation of the defendant was conducted, the effect (nullity) of the acts of litigation performed by the court of first instance and the measures to be taken by the appellate court in that regard
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 수원지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Suwon 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 term "the defendant is detained" provided in Article 33, paragraph (1), subparagraph 1 of the Criminal Procedure Act as one of the grounds for the mandatory appointment of a defense counsel at state expense cannot be regarded as limited to the case where the defendant is detained in the relevant criminal case and being tried, and
Factors
- ‘피고인이 구속된 때’가 피고인이 해당 형사사건에서 구속되어 재판을 받고 있는 경우에 한정되는지 여부(소극)
- 피고인이 별건으로 구속영장이 발부되어 집행되거나 다른 형사사건에서 유죄판결이 확정되어 그 판결의 집행으로 구금 상태에 있는 경우도 포괄하는지 여부(적극)
- 제1심의 공판절차가 변호인 없이 이루어져 증거조사와 피고인신문 등 심리가 이루어진 경우
- 제1심이 행한 소송행위의 효력(무효)
- 이때 항소심이 취해야 할 조치
Unofficial English translation
• Whether "the defendant is detained" is limited to the case where the defendant is detained in the relevant criminal case and being tried (negative)
• Whether it also encompasses the case where a warrant of detention is issued and executed in a separate case, or where a conviction has become final and conclusive in another criminal case and the defendant is in custody by execution of that judgment (affirmative)
• Where the trial procedure of the court of first instance was conducted without counsel and examination such as the taking of evidence and the interrogation of the defendant was conducted
• The effect (nullity) of the acts of litigation performed by the court of first instance
• The measures to be taken by the appellate court in that regard
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
Where a defendant's detention on a separate charge ends before the appeal opens, does the appeal still require defence counsel under Article 33(1)(i) of the Criminal Procedure Act?
Any amendment to Articles 33 and 282 of the Criminal Procedure Act, or a later Supreme Court decision narrowing or extending the reading of 'the defendant is detained' accepted here from the en banc decision, would call for this entry to be read again. The remand judgment of the Suwon District Court will show how the retrial with counsel was carried out.
Cross-family AI independent reading & axis check
6 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 6 of the 8 axes; the readings differed on axis 4 (form of the test), axis 8 (open question and revisit condition).
Axis 4 (Form of the test): Primary “Elements stated” vs Independent “Existing test applied”
The primary reading treats the holding as stating general requirements (요건 제시), while the independent reading applies the rule to a defendant serving a sentence in another case (사안 적용). The difference is in how the same passage is categorized, not in its substance.
필요적 변호사건에서 제1심의 공판절차가 변호인 없이 이루어져 증거조사와 피고인신문 등 심리가 이루어진 경우, 제1심이 행한 소송행위의 효력(무효)Axis 8 (Open question and revisit condition): Primary “Where a defendant's detention on a separate charge ends before the appeal opens, does the appeal still require defence counsel under Article 33(1)(i) of the Criminal Procedure Act?” vs Independent “What specific steps suffice to repeat each invalid procedural act with defense counsel present?”
The primary reading asks whether the appeal still needs counsel after a separate detention ends before the appeal opens. The independent reading asks which concrete steps are needed to redo each void act with counsel present. These are different unresolved points.
필요적 변호사건에서 제1심의 공판절차가 변호인 없이 이루어져 증거조사와 피고인신문 등 심리가 이루어진 경우, 제1심이 행한 소송행위의 효력(무효) 및 이때 항소심이 취해야 할 조치Raw 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 first-instance court did not appoint a defence counsel for the defendant, who had none retained, and proceeded with the hearing and the examination of evidence, then convicted him. The appellate court, the Suwon District Court in its judgment of 18 April 2024 (2024No250), held the hearing with a state-appointed defence counsel participating, told counsel the gist of the first-instance evidence and sought counsel's views, then notified counsel that applications for the examination of evidence could be made and closed the evidence, accepted the prosecutor's appeal, reversed the first-instance judgment which had imposed four months and imposed one year, quoting verbatim the column recording the gist of the evidence in the first-instance judgment.
Supreme Court standard: The Supreme Court held that because the defendant was serving a sentence on another case, this was a mandatory defence case under Articles 282 and 33(1)(i) of the Criminal Procedure Act. The first-instance procedural acts were therefore all void, and the appellate court erred in taking them to be valid and in giving judgment on the basis of the evidence the first-instance court had admitted and examined, a misreading of the law that affected the judgment. It reversed and remanded the case to the Suwon District Court without reaching the grounds of appeal, by the unanimous opinion of the participating Justices.
Distinguishing conditions
- A defendant who was not in custody at all while the first-instance case was pending, with no detention warrant on a separate charge and no sentence being served on another case.
- A first-instance court that appointed a defence counsel and held the hearing with counsel present, so that no procedural act was made without counsel.
- An appellate judgment rendered after counsel had been appointed and the procedural acts redone, with the judgment resting on the appellate court's own examination of evidence and statements.
Record verification notes
Set the hearing dates at first instance and on appeal against the custody record, which must show the sentence on the other case running on those dates, since the mandatory defence ground turned on that fact. Then check whether a defence counsel was appointed before the first-instance hearing opened. Finally compare the appellate judgment with the appellate hearing record: if it rests on the evidence the first-instance court admitted and examined, or merely quotes that column, the defect the Court identified remains.
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 "the defendant is detained" provided in Article 33, paragraph (1), subparagraph 1 of the Criminal Procedure Act as a ground for the mandatory appointment of a defense counsel at state expense is limited to the case where the defendant is detained in the relevant criminal case and being tried (negative), and whether it also encompasses the case where a warrant of detention is issued and executed in a separate case, or where a conviction has become final and conclusive in another criminal case and the defendant is in custody by execution of that judgment (affirmative) [2] Where, in a case subject to mandatory defense, the trial procedure of the court of first instance was conducted without counsel and examination such as the taking of evidence and the interrogation of the defendant was conducted, the effect (nullity) of the acts of litigation performed by the court of first instance and the measures to be taken by the appellate court in that regard
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 수원지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Suwon 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.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
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