형사재판의 이념과 현실 사이에서 본 국선변호인 선정 사유

Abstract

The appointment of public defenders is the first step in the public defender system, which plays a crucial role in our criminal justice process. This article supports the majority opinion in the 2024 Supreme Court en banc decision, which expands the protection of defendants' right to defense in relation to mandatory public defense cases. At the same time, the protection of defendants' right to defense, an essential principle of criminal procedure, must be harmonized with the efficient allocation of judicial resources. So the article reevaluates the meaning of mandatory public defense (Article 33, Paragraph 1), public defense upon request (Paragraph 2), and discretionary public defense (Paragraph 3) under the Criminal Procedure Act. Mandatory public defense is based on the principle that the protection of a defendant's right to defense holds absolute precedence, leaving no room for discussing the efficient allocation of judicial resources. In the case of public defense upon request, the restriction of eligibility to “poverty or other reasons” serves to balance the defendant’s right to defense with the efficient allocation of judicial resources. For discretionary public defense, the scope of discretion is narrow when it serves as a supplementary measure to mandatory or requested public defense. However, in other cases, it is necessary to ensure harmony between the protection of the defendant's right to defense and the effective use of judicial resources by actively leveraging cost-sharing decisions. The court's rulings should continue to advance in the direction of expanding the protection of defendants’ rights while simultaneously refining institutional frameworks for the efficient allocation of judicial resources.