[2] The case holding that in case where the court dismissed the request for summary judgment by the chief of police station and transferred the case to the competent district public prosecutor's office, but the prosecutor misleads the case into being the case where the request for formal trial against the summary judgment was made and sent the records of the case to the court

[3] In a case where the indictment was not established due to the absence of the submission of the indictment, if the indictment was later submitted to the court, whether the indictment may be deemed to exist when the indictment was submitted (affirmative)

[4] The case holding that in a case where the prosecutor submitted the indictment for a summary order to the court of the first instance where the defendant was summoned even though the prosecution was not originally instituted, and the procedure of trial is in progress based on the above indictment, the court of the first instance should determine the substantial judgment of guilt and innocence based on it

[2] Where the court dismissed the request for summary trial by the chief of a police station and sent the case to the competent district public prosecutor's office, but the prosecutor mispers him as to the request for formal trial against the summary judgment and sents the records of the case to the court, the prosecution cannot be deemed to have been established only with the fact that the records were sent to the court unless the written indictment is submitted by the prosecutor which is the essential element

[3] In a case where the intrinsic conceptual elements required as a procedural act are lacking, and the procedural act is not constituted as a procedural act, unlike the case where the procedural act was established but is null and void, it does not occur, but where the procedural act was conducted lawfully, it can be deemed that the procedural act was conducted from that time.

[4] The case holding that in a case where a prosecutor submitted a written indictment claiming a summary order to the court of the first instance in the situation where the prosecution was not originally instituted but the prosecution was de facto pending, such as summons of the defendant, etc., and the procedure of trial is in progress based on the above written indictment, the court of the first instance should determine the substantial judgment of guilt and innocence

1. The judgment of the court below

According to the reasoning of the judgment below, the court below acknowledged that the head of the Seoul Seongbuk Police Station requested a summary judgment against the defendant on September 4, 2002 on the ground of violation of Article 44 of the Road Traffic Act, but the above court dismissed the request for such summary judgment by decision pursuant to Article 5 (1) of the Act on the Procedure of Summary Trials since the above case is inappropriate to adjudicate under the summary judgment proceedings on the same day. The Seoul Seongbuk Police Station sent the records of the case to the prosecutor of the Seoul Seongbuk Police Station on November 16, 2002, and the prosecutor who was in charge of the case sent the records of the case to the first instance court on the ground that there was a request for formal judgment from the defendant on November 16, 2002. On the other hand, if the prosecutor sent the records to the court on the ground that there was a request for formal judgment by the chief of the police station on the ground that the defendant's request for formal judgment, this case is the case dismissed, and thus only the prosecutor can prosecute this case, and the prosecutor cannot prosecute the case after the prosecution was dismissed after the second of the prosecution.

2. The judgment of this Court

However, the judgment of the court below is not acceptable in the following respect.

In order for a litigation to be established, an indictment shall be a juristic act of a public prosecutor demanding a trial for a specific criminal case against the court. Article 254(1) of the Criminal Procedure Act provides that the indictment shall be submitted to the competent court. Article 254(3) of the Criminal Procedure Act provides that the indictment shall include the name of the defendant and other matters by which the defendant can be identified, the name of the crime, the facts charged, and the applicable provisions of Acts in the indictment. As such, the Criminal Procedure Act provides that the presentation of the indictment by the public prosecutor is an essential element for the establishment of a public prosecution, and thus, the indictment shall not be established in a case where there is no submission of the indictment.

In the case of this case, where the chief of a police station transfers the case to the chief of the competent district public prosecutor's office or branch office due to the decision to dismiss the request for a summary judgment, the public prosecutor may institute a public prosecution, and where the public prosecutor institutes a public prosecution, the public prosecutor shall prepare and submit the indictment in accordance with Article 254 of the Criminal Procedure Act. However, where the public prosecutor misleads the defendant into the case where a request for formal trial against a summary judgment was made and sent the records of the case to the court, such sending of records of the case by the public prosecutor shall not be deemed to have been established merely by sending records to the court unless there is a submission of the indictment by the public prosecutor which is deemed to be an essential element of the public prosecution, even though there is no difference between the defendant's request for formal trial against a summary judgment and the sending of records

In addition, in the event that the intrinsic conceptual elements required as a procedural act are lacking and the procedural act is not constituted as a procedural act, the procedural act is established, but the procedural act does not take place differently from the invalid case, but if the procedural act is conducted lawfully, it can be deemed that the procedural act was conducted at that time, and thus, the procedural act should be taken accordingly.

According to the records, the court of the first instance shall be deemed to have instituted a public prosecution on this case, and the case shall be summoned on December 27, 2002 as the first public trial date, and the defendant was summoned on December 27, 2002. On the first public trial date, the court of the first instance recognized the defendant and delayed the trial date in order to examine the problems in the prosecution procedure. The public prosecutor submitted the indictment to request the defendant to issue a summary order requiring a fine of KRW 50,000 to the defendant on January 21, 2003. Accordingly, the court of the first instance shall re-examine the defendant on the second public trial date executed on January 22, 2002, notified the defendant the right to refuse to make statements, followed the defendant examination in accordance with the above indictment submitted by the public prosecutor, denied the charges, received evidence by the public prosecutor, and proceeded the trial date, such as going through evidence examination.

Thus, this case may be deemed as lawful prosecution only after submitting the indictment to the first instance court for a summary order under the circumstances where the defendant was summoned even though the case was not originally prosecuted. Meanwhile, if the court deems it impossible or inappropriate to issue a summary order upon a request for a summary order, it shall be judged by the procedure of the trial (Article 450 of the Criminal Procedure Act). In order to judge the case by the court under the procedure of the trial, it is not necessary to make a special form decision, and it is not necessary for the first instance court to examine the defendant again, and examine the defendant based on the above indictment, it may be deemed that the second trial date is progress by submitting the procedure of the trial as to the above request for the summary order and submitting it to the public prosecutor (Article 172(1) of the Regulations on Criminal Procedure, but a junior administrative officer shall immediately notify the defendant of the purport thereof, and the public prosecutor shall submit a copy of the indictment to the court within 7 days prior to the trial date (Article 172(1) of the above Rules on Criminal Procedure).

Therefore, the first instance court should have judged the substance of the indictment by lawful indictment in accordance with the later submitted indictment, and accordingly, it should have judged the substance of the indictment and not guilty. However, in the first instance court's delivery of the record by mistake of the prosecutor, the indictment was established by deeming that the prosecutor had the intention to prosecute, but since there was no submission of the indictment by the prosecutor, it was sentenced to the judgment dismissing the prosecution on the ground that the indictment is null and void, and the court below also held that the procedure of indictment is null and void in violation of the provisions of law, and that maintaining the first instance court as it is on the ground that this defect is not cured as a subsequent submission of the indictment was not cured.

The prosecutor's ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, by applying Article 393 of the Criminal Procedure Act, the lower judgment and the first instance judgment are all reversed, and the case is remanded to the first instance court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)