Supreme Court Decision 2015Do9951 Decided December 23, 2015【Contempt;

Assault; Bodily Harm; Defamation】

【Main Issues and Holdings】

[1] Meaning of the constitutionally guaranteed “right to have the assistance of

counsel,” and whether the State’s obligation to guarantee the defendant’s right to
have the assistance of a public defender includes the obligation to allow the
defendant to have the substantial assistance of a public defender (affirmative)

[2] In cases where, on the face of the facts charged, an argument favorable to one
defendant causes unfavorable consequences to another defendant, whether there is
a conflict of interests among the co-defendants (affirmative) / In cases where one
of the defendants (“D1”), whose interests conflict with those of the other defendant
(“D2”), retained as her counsel a law firm, which in turn assigned the case to a
team of attorneys, whether the court infringes on D2’s right to have the assistance
of a public defender by appointing one or more of the attorneys assigned for D1
as D2’s public defender (affirmative)

【Summary of Decision】

[1] The constitutionally guaranteed “right to have the assistance of counsel” means
the right to have the “sufficient assistance” of a counsel. As such, the State’s
obligation to guarantee the defendant’s right to have the assistance of a public
defender includes the obligation to allow the defendant to have the substantial
assistance of a public defender.

[2] In cases where, on the face of the facts charged, an argument favorable to one
defendant causes unfavorable consequences to another defendant, there is a
conflict of interests among the co-defendants. In cases where one of the
defendants, whose interests conflict with those of the other defendant, retained as
her counsel a law firm, which in turn assigned the case to a team of attorneys,
the court’s appointment of one or more of the attorneys as public defender(s) for
the other defendant would make it difficult for the attorney(s) appointed as a
public defender to make an argument favorable to all the defendants whose
interests conflict with each other. As a result, the other defendant ends up losing
access to the substantial assistance of a public defender. Therefore, such an
appointment of a public defender infringes on the defendant’s right to have the
assistance of a public defender.

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【Reference Provisions】[1] Article 12(4) of the Constitution of the Republic of Korea
/ [2] Article 12(4) of the Constitution of the Republic of Korea; Article 33 of the
Criminal Procedure Act; Article 50(1) and (7) of the Attorney-at-Law Act

Article 12 of the Constitution of the Republic of Korea

(4) Any person who is arrested or detained shall have the right to prompt
assistance of counsel. When a criminal defendant is unable to secure counsel by
his/her own efforts, the State shall assign counsel for the defendant as prescribed
by Act.

Article 33 of the Criminal Procedure Act (Court-Appointed Defense Counsel)

(1) In any of the following cases, if no defense counsel is available, the court shall
appoint a defense counsel ex officio:

1. When the criminal defendant is placed under detention;

2. When the criminal defendant is a minor;

3. When the criminal defendant is 70 years of age or over;

4. When the criminal defendant is deaf and dumb;

5. When the criminal defendant is suspected of having a mental disorder;

6. When the criminal defendant is indicted for a case punishable with death
penalty or imprisonment, with or without labor, for an indefinite term or for a
minimum term of not less than three years.

(2) Where the criminal defendant is unable to appoint a defense counsel because
of poverty or for any other reason, the court shall appoint a defense counsel if
the criminal defendant requests.

(3) When the court deems it necessary to protect the rights considering the age,
intelligence and level, etc. of education of the criminal defendant, it shall appoint
a defense counsel within the scope that does not go against the explicit intention
of the criminal defendant.

Article 50 of the Attorney-at-Law Act (Method of Execution of Operations)

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(1) Each law firm shall execute operations in its name and designate an
attorney-at-law to be in charge of such operations: Provided, That an associate
attorney-at-law shall be designated jointly with a partner.

(7) Every law firm shall mark its name on every document that it prepares in
connection with its operations, and the attorney-at-law in charge shall sign it and
affix his/her seal thereto or sign it. <Amended by Act No. 9416, Feb. 6, 2009>

【Reference Case】[1] Supreme Court en banc Order 2009Mo1044 dated Feb. 16, 2012
(Gong2012Sang, 480)

【Defendant】Defendant 1 and one other

【Appellant】Defendants

【Defense Counsel】Attorney Lim Dong-eon

【Judgment of the court below】Seoul Western District Court Decision 2014No1566

decided June 11, 2015

【Disposition】Of the judgment below, the part on Defendant 1 is reversed, and that
part of the case is remanded to the Seoul Western District Court Panel Division.
Defendant 2’s appeal is dismissed.

【Reasoning】The grounds of appeal are examined (to the extent of supplement in

case of any supplemental appellate briefs not timely filed).

1. As to Defendant 1’s ground of appeal

A. Legal principles on the right to have the substantial assistance of a public

defender

The constitutionally guaranteed “right to have the assistance of counsel” means

the right to have the “sufficient assistance” of a counsel. As such, the State’s
obligation to guarantee the defendant’s right to have the assistance of a public
defender includes the obligation to allow the defendant to have the substantial
assistance of a public defender (see, e.g., Supreme Court en banc Order
2009Mo1044, Feb. 16, 2012).

In cases where, on the face of the facts charged, an argument favorable to one
defendant causes unfavorable consequences to another defendant, there is a

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conflict of interests among the co-defendants. In cases where one of the
defendants, whose interests conflict with those of the other defendant, retained as
her counsel a law firm, which in turn assigned the case to a team of attorneys,
the court’s appointment of one or more of the attorneys as a public defender(s)
for the other defendant would make it difficult for the attorney(s) appointed as a
public defender to make an argument favorable to all the defendants whose
interests conflict with each other. As a result, the other defendant ends up losing
access to the substantial assistance of a public defender. Therefore, such an
appointment of a public defender infringes on the defendant’s right to have the
assistance of a public defender.

B. Conflict of interests between the Defendants

Of the facts charged against Defendant 1, the part pertaining to Defendant 2 is

that Defendant 1 inflicted a bodily harm to Defendant 2 by shoving Defendant 2’s
chest with her elbow, thereby knocking her down.

Meanwhile, the facts charged against Defendant 2 are that, as she was being
attacked as above, she inflicted bodily harm to Defendant 1 by slamming a trash
can against Defendant 1’s shoulder, and that she defamed Defendant 1.

On the face of the facts charged, an argument favorable to one Defendant would
result in an unfavorable consequence to the other Defendant. As such, there is a
conflict of interests between the Defendants.

C. Appointment of counsel for Defendant 2

1) Reviewing the records reveals the following facts.

A) After the first instance decision was rendered, the “attorney retainer” was
submitted to the first instance court, which was jointly signed by Defendant 2 and
Non-Indicted 1 Law Firm. The “Case” column of said document stated “Appeal,”
and its main text stated, “I hereby submit the attorney retainer indicating the
retention of the following attorneys as my counsels on the above case. Attorneys
assigned by Non-Indicted 1 Law Firm: Non-Indicted 2, Non-Indicted 3, Non-
Indicted 4, Non-Indicted 5, and Non-Indicted 6.”

B) At the same time as said attorney retainer was submitted, Non-Indicted 1 Law
Firm’s written attorney assignment was also submitted. The “Attorney in charge”
column of said document only stated “Non-Indicted 2.”

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C) Thereafter, Non-Indicted 1 Law Firm’s appellate brief for Defendant 2 was
submitted to the court below. At the end of said appellate brief were the names of
the attorneys in charge, i.e., “Non-Indicted 2, Non-Indicted 3, Non-Indicted 4,
Non-Indicted 5, and Non-Indicted 6,” along with their respective seals.

2) The main text of Article 50(1) of the Attorney-at-Law Act provides, “Each law
firm shall execute operations in its name and designate an attorney-at-law to be
in charge of such operations[.]” Paragraph (7) of the same Article provides, “Every
law firm shall mark its name on every document that it prepares in connection
with its operations, and the attorney-at-law in charge shall sign it and affix
his/her seal thereto or sign it.” Neither the Attorney-at-Law Act nor its
Enforcement Decree provides for the method of appointing the counsel. In
addition, in the column for attorney in charge in the above written attorney
assignment, the name of Non-Indicted 5 Attorney was stated, and the space for
the attorney in charge in the above appellate brief had the signature and seal of
the Non-Indicted 5 Attorney. In full view of these, although the written attorney
assignment states only Non-Indicted 2 Attorney as the attorney in charge, it
should be deemed that Non- Indicted 1 Law Firm also assigned Non-Indicted 5
Attorney as the attorney in charge for Defendant 2.

D. Appointment of a public defender for Defendant 1

The records show the followings: (a) after the submission of the above attorney
retainer, Defendant 1, for her part, filed with the court below a request for
appointment of a public defender; and (b) the court below appointed Non-Indicted
5 Attorney above as Defendant 1’s public defender.

E. Infringement on Defendant 1’s right to have the substantial assistance of a

public defender

As seen earlier, there is a conflict of interests between the Defendants. Under the
legal doctrine as seen earlier, the lower court’s appointment of Non-Indicted 5 as
Defendant 1’s public defender even when Defendant 2 retained as her counsel
Non-Indicted 1 Law Firm, which in turn assigned the case to Non-Indicted 5
Attorney, is an infringement on Defendant 1’s right to have the substantial
assistance of a public defender. Therefore, in so determining, the court below
erred by misapprehending the legal principles on the right to have the assistance
of a public defender, thereby affecting the conclusion of the judgment.

2. As to Defendant 2’s ground of appeal

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Even when examining the reasoning of the judgment below based on the evidence,
by convicting Defendant 2 on the facts charged, the lower court neither mistook
the facts nor misapprehended the legal doctrine by failing to exhaust all necessary
deliberations in violation of logical and empirical rules, contrary to what is alleged
in the ground of appeal.

3. Conclusion

Therefore, without proceeding further to decide on Defendant 1’s remaining

grounds of appeal, of the judgment below, the part on Defendant 1 is reversed,
and that part of the case is remanded to the court below for further proceedings
consistent with this Opinion. Defendant 2’s appeal is dismissed. It is so decided as
per Disposition by the assent of all participating Justices.

Justices Kim Yong-deok (Presiding Justice)

Park Poe-young
Kim Shin (Justice in charge)
Kwon Soon-il

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