In Their 70s, Even 'Gangnam Building Owners' Use Public Defenders [Public Defender Report]

‘Court-Appointed Defense for Those Over 70’ Law Leads to
‘No-Lose’ Tactics Even When Private Counsel Is Affordable
“Support Should Be Focused on Those Truly in Need”

Editor's NoteFour out of ten defendants in criminal cases receive assistance from court-appointed (gukseon) lawyers. Court-appointed defense is a system designed to guarantee the constitutional right to counsel (the right to legal assistance) for suspects and defendants who have difficulty hiring private attorneys, mainly due to economic reasons. As such, the 'court-appointed defense stories' often reflect the deep-rooted issues and blind spots within our society.

A court-appointed defense attorney with 10 years of experience, Attorney A, was assigned a case involving Mr. Kim, a man in his 70s who owns a building in Gangnam. Mr. Kim was prosecuted for cutting off electricity to a commercial property and changing its locks after a dispute with a tenant. However, he said, “Hiring a lawyer is a waste of money. I’ll see how the court-appointed lawyer handles it first,” and requested the court to assign a court-appointed lawyer for both the first trial and the appeal.

The case of Mr. Lee, who was indicted for employing minors at an entertainment establishment, was also assigned to Attorney A. Since Mr. Lee denied the charges and delayed hiring a lawyer, the court appointed a court-appointed lawyer to assist with evidence examination and organizing arguments. Mr. Lee was also a person of considerable wealth. Attorney A said, “Cases like these probably make up about half of the cases assigned to court-appointed lawyers,” adding, “This makes it difficult to focus on cases involving defendants who truly need court-appointed defense.”

The court-appointed defense system was originally established to ensure the right to defense for socially and economically disadvantaged individuals by the state. However, there are many operational cases that undermine the intention to provide ‘thicker’ protection to the target group. According to the Criminal Procedure Act, defendants aged 70 or older are subject to ‘mandatory court-appointed defense.’ For elderly defendants over seventy, the court appoints a court-appointed lawyer ex officio.

However, since the criterion is based solely on ‘age,’ there are cases where elderly defendants who have sufficient means to hire their own lawyers use court-appointed lawyers as a ‘no-lose’ or ‘testing the waters’ strategy.

One court-appointed lawyer said, “There are cases where court-appointed defense is required even when a defendant requests a formal trial after receiving a fine,” and added, “It is questionable whether court-appointed defense is necessary in cases that risk encouraging frivolous litigation.”

According to the Judicial Yearbook, the number of defendants aged 70 or older assigned court-appointed lawyers was about 6,500 in 2019, increasing to 7,300 in 2020 and 8,500 in 2023. This is a 30% increase over four years. This number far exceeds those of minors (919), persons with disabilities (146), and cases involving death penalty, life imprisonment, or imprisonment of three years or more (4,438), which are also subject to mandatory court-appointed defense.

One court-appointed defense attorney said, “In cases where trials are deliberately delayed, the court sometimes appoints a court-appointed defense attorney on the spot for procedural convenience. Among these discretionary court-appointed defense cases, there are instances where defendants exploit the system by knowing how to ‘use a lawyer for free.’” When such loopholes become widespread, the essence of the system is compromised.

The remuneration for court-appointed defense attorneys has been about 6 million KRW per month (based on initial appointment) for 19 years since 2007. Considering that they handle around 20 cases per month on average, this amounts to approximately 310,000 KRW per case. One court-appointed defense attorney said, “Statistically, court-appointed lawyers play a key role in criminal justice procedures, but they are not sufficiently focused on socioeconomically vulnerable groups.” This ultimately results in taxpayers’ money being wasted.

Kim Jung-wook, President of the Korean Bar Association, stated, “It is essential to increase court-appointed defense fees and improve the treatment of court-appointed defense attorneys,” adding, “The eligibility for court-appointed defense should be clearly defined so that socially disadvantaged individuals can receive substantial and adequate assistance.”