‘피고인이 구속된 때’의 의미 - 대법원 2024. 5. 21. 선고 2021도6357 전원합의체 판결을 중심으로 -

Abstract

This Article goes on the meaning of “When the criminal defendant is placed under detention”in Article 33 Paragraph 1, Subparagrph 1 of Criminal Procedure Act. Article 33 Paragraph 1, Subparagrph 1 of Criminal Procedure Act stipulates “when the criminal defendant is placed under detention” as one of the grounds on which the court shall appoint a defense counsel ex officio when the criminal defendant does not have a defense counsel (hereinafter the “compulsory ground for the appointment of a court-appointed defense counsel”). The Supreme Court has ruled that “when the criminal defendant is placed under detention” as referred to in Article 33(1)1 of the Criminal Procedure Act refers to where the criminal defendant is under detention and being tried in the relevant criminal case in that the original purpose of the detention system is to place the criminal defendant under physical restraint according to the requirements and procedures prescribed by law to secure the progress of a criminal lawsuit and the execution of punishment and does not include where the criminal defendant is under detention in a separate case, not in the relevant criminal case, or the criminal defendant is in prison after a judgment of guilt is finally affirmed in another criminal case (hereinafter “legal principles of previous precedents”). In this paper, we first looked at the concept of the permissible meaning and possible meaning of the legal text and analyzed the Supreme Court Decisions that drew different conclusions even though they used the same standard of ‘possible meaning’ of the legal text. Through this, the conclusion is limited to the target decision, and it is based on the legal principle of previous precedents, which holds that 'when the defendant is arrested' in Article 33, Paragraph 1, Subparagrph 1 of the Criminal Procedure Act means when the defendant is detained and tried in the relevant criminal case. The government also presented its position that there were no significant problems in resolving the subject matter. As a solution to expand the scope of detention suggested by the majority opinion of the target decision, a legislative theory was presented to revise Article 33 Paragraph 1, Subparagrph 1 of Criminal Procedure Act, referring to Article 140, Paragraph 1, Subparagrph 5 of the German Criminal Procedure Act.