필요적 국선변호인 선정 사유인 ‘피고인이 구속된 때’의 의미: 대법원 2024. 5. 23. 선고 2021도6357 전원합의체 판결을 중심으로

Abstract

The Supreme Court, in its en banc decision 2021Do6357 on May 23, 2024, ruled that the term “when the defendant is detained,” as specified in Article 33, Paragraph 1, Subparagraph 1 of the Criminal Procedure Act, which constitutes grounds for the mandatory appointment of a public defender, cannot be limited solely to cases where the defendant is detained in connection with the specific criminal case being tried. The Court held that it also encompasses situations where the defendant is detained under an arrest warrant issued in a separate case or is in a state of detention due to the execution of a sentence after a guilty verdict has been finalized in another criminal case. By interpreting the meaning of “detention,” which forms the basis for the mandatory appointment of a public defender, more broadly than before, the ruling significantly enhances the protection of constitutional rights, such as the right to assistance of counsel and the right to a fair trial, for defendants who are in a weakened state of defense due to being detained by the state’s public authority. Going forward, it is necessary to fully consider the intent of this ruling in the legislation and interpretation of systems related to the defense rights of defendants in a state of physical detention. First, the provisions of the Criminal Procedure Act should be clarified to include cases where “the defendant is in a state of detention due to the execution of a sentence after a guilty verdict has been finalized in another criminal case.” Additionally, it is crucial to identify situations where the defendant’s right to defense is substantially threatened due to physical constraints and to implement specific legislative responses for each situation. Moreover, the interpretation of the term “detention” in the Criminal Procedure Act, when used in the context of describing the “state” of the individual entitled to procedural guarantees, should be reexamined in a way that effectively protects the defendant’s right to defense.