Supreme Court's en banc decision on the meaning of‘when the criminal defendant is placed under detention’(Criminal Procedure Act Art. 33 para.1(1))

Korean Criminal Procedure Act establishes “when the defendant is in custody” as one of the grounds for appointing a public defender. (Article 33, Paragraph 1(1)) The Supreme Court has traditionally viewed this as a case in which the defendant is detained and on trial in the criminal case in question. It may be reasonably concluded, therefore, that being detained in a separate case or being convicted and sentenced in another criminal case does not qualify as a reason for the appointment. However, in May 2024, the Supreme Court reconsidered its position to include cases where a warrant of arrest has been issued and executed in a separate case or where the defendant has been convicted in another criminal case and is in custody as a result of the execution of the judgment. This artice reviews the decision to reconstruct the contents of its majority opinion, separate opinion, and supplementary opinion by interpreting the legal textual meaning of the concept of restraint, interpreting the purposive meaning, and policy interpretation issues. It will then evaluate them together with related laws and theories, with a view to seeking a legislative solution to the interpretation controversy. While the existing precedents did not present the interpretation arguments in detail, the individual opinions of the judgments indicate that the arguments were based on the stable utilization of the current system and practice on public defenders and the right to counsel, as well as the efficient allocation of judicial resources. There is a difference of opinion as to whether the expansion of the right to counsel and the necessary expansion of the public defender system should be achieved by changing case law or by amending the law. Thus, the author propose the amendment of paragraph 1(1) of the Article 33, “When the criminal defendant is placed under detention”to “When the criminal defendant is placed under custody”.