[폭력행위등처벌에관한법률위반(야간·공동폭행)·폭력행위등처벌에관한법률위반(야간집 단·흉기등협박){인정된 죄명 : 폭력행위등처벌에관한법률위반(야 간·공동협박)}][공2005.8.15.(232),1369]
[1] The measures to be taken by the court in a case where there are several crimes that can be tried and judged within the scope of the facts charged without the amendment process
[2] The case reversing the judgment of the court below that only a violation of Article 2(2) of the Punishment of Violences, etc. Act and Article 283(1) of the Criminal Act can be established with respect to the facts charged by applying the phrase "a person who committed a crime under Article 283(1) (Intimidation) of the Criminal Act by carrying a deadly weapon or other dangerous articles at night" under Article 3(2) of the Punishment of Violences, etc. Act which became invalidated due to the decision of unconstitutionality
[1] If there are not only one crime that can be tried and judged by the court even without the amendment process, but also several individuals, the court shall not choose either of them at will, but also require the prosecutor to seek an explanation of the facts charged and the applicable provisions of Acts and subordinate statutes to supplement the indictment, and then hear and determine the indictment accordingly.
[2] The case reversing the judgment of the court below which dismissed this part of the charges pursuant to Article 327 subparagraph 6 of the Criminal Procedure Act, on the grounds that since Article 3 (2) of the Punishment of Violences, etc. Act which was invalidated by the Constitutional Court's decision of unconstitutionality contains other charges, such as violation of Article 3 (1) of the Punishment of Violences, etc. Act and Article 283 (1) (Intimidation) of the Criminal Act, since the part of the charges charged by carrying a deadly weapon or other dangerous articles at night is applicable to the person who committed the crime under Article 283 (1) (Intimidation) of the Criminal Act and Article 283 (1) (Intimidation) of the Criminal Act, and the judgment of the court below which dismissed this part of the charges pursuant to Article 327 subparagraph 6 of the Criminal Procedure Act is included in the charges of other crimes, such as violation of Article 3 (1) of the Criminal Act
[1] Articles 254 and 298 of the Criminal Procedure Act / [2] Article 3 (2) of the Punishment of Violences, etc. Act, Article 298 of the Criminal Procedure Act
[1] Supreme Court Decision 90Do401 delivered on April 24, 1990 (Gong1990, 1197)
Defendant
Prosecutor
Daejeon District Court Decision 2004No2736 Decided December 22, 2004
The judgment of the court below is reversed, and the case is remanded to Daejeon District Court Panel Division.
1. Of the facts charged in this case, the court below decided that the defendant, on March 15, 2004, prosecuted the defendant by applying Articles 3(2) and (1), 2(1), and 283(1) of the Punishment of Violences, etc. Act to the part where the defendant, on the defendant's house located at the defendant's office, reported the victim (the victim (the victim of 44 years of age) with a deadly weapon, and collected the victim with a deadly weapon, "I am she would have been about about she she she and she would have been she would have been shed about her body," and that the prosecutor could not be punished for the crime of violation of Article 283(1)(Intimidation) of the Criminal Procedure Act by the decision of the Constitutional Court which stated that the crime of violation of Article 283(2) of the Criminal Procedure Act cannot be charged against the victim's will and other dangerous articles at night, and the crime of violation of Article 283(1)(2)(3) of the Criminal Act cannot be punished.
2. However, the lower court’s determination is difficult to accept.
Of the charges charged in violation of Articles 3(2) and (1) and 2(1) of the Punishment of Violences, etc. Act and Article 283(1) of the Criminal Act, a person who carries a lethal weapon at night and commits a crime of intimidation under Article 283(1) of the Criminal Act shall be deemed to be included in the charges as well as the charges of violation of Article 2(2) of the Punishment of Violences, etc. Act and Article 283(1) of the Criminal Act (even at night), (2) of the Punishment of Violences, etc. Act, Article 3(1) of the Criminal Act, Article 283(1) of the Criminal Act, (3) of the charges of special intimidation under Article 284 of the Criminal Act, (4) of the charges of simple intimidation under Article 283(1) of the Criminal Act, and Article 3(2) of the Punishment of Violences, etc. Act and Article 283(1) of the Criminal Act, the court shall have no effect in the indictment where the sentence and Article 283(1) of amendment of the Criminal Act are included in the charges.
However, the court may not judge a case for which a prosecution has not been instituted, and the prosecutor has exclusive authority to institute a public prosecution or revoke a public prosecution already instituted. Article 254(3) of the Criminal Procedure Act provides that the name of the crime, the facts charged, as well as the applicable provisions of the Act shall be stated in the indictment in case of a public prosecution, and the scope of the public prosecution shall be determined by stating the applicable provisions of the Act. Article 298 of the same Act provides that the public prosecutor may add, delete, or change the facts charged or the applicable provisions of the Act stated in the indictment with the permission of the court (Article 298(1)), and the court shall request the addition or change of the facts charged or applicable provisions of the Act (Article 2(2)) if it is deemed reasonable in light of the progress of the trial (Article 2), and the legal composition or applicable Acts of the facts charged during the public prosecution pending in the lawsuit are different. In addition, the court may choose one of them arbitrarily, and shall make the public prosecutor supplement and determine the charges by making the indictment available for the prosecution.
Nevertheless, the court below held that Article 3 (2) of the Punishment of Violences, etc. Act, which is the applicable provisions of the Act on the Punishment of Violences, etc., as a result of the Constitutional Court's decision of unconstitutionality, lost its validity, and held that only a violation of Article 2 (2) of the Punishment of Violences, etc., by at night intimidation, and Article 283 (1) of the Criminal Act can be established with respect to the above facts charged, as seen earlier, the court below ruled that the dismissal of prosecution can be made as above, and there is an error of law by misunderstanding legal principles as to the scope that can be judged without the amendment of indictment
On the other hand, the remaining guilty portion of the judgment below is not indicated in the petition of appeal or the appellate brief.
3. Therefore, of the judgment of the court below, the dismissal of prosecution in the part of the judgment below is unlawful, and the remaining convictions shall be dismissed. Since the two parts are concurrent crimes under the former part of Article 37 of the Criminal Act, where the dismissal of prosecution is found guilty, one sentence shall be imposed. Thus, the judgment of the court below is reversed in its entirety and the case shall be remanded
Justices Lee Yong-woo (Presiding Justice)