According to records, the following facts are recognized.

A. On August 2, 2005, the prosecutor filed an appeal against the lower judgment, and received the notification of the receipt of the trial record from this court on August 19, 2005.

B. On September 2, 2005, the prosecutor submitted the document of the title "written grounds for appeal", and the facts alleged as the grounds for appeal are to be changed to the violation of Article 254 (2) 3 of the Public Official Election Act (violation of Restriction on Election Campaign Period) at the appellate court to the effect that the indictment of this case, which was prosecuted as a violation of Article 256 (3) 6 and Article 141 of the former Public Official Election Act (amended by Act No. 7681 of Aug. 4, 2005, hereinafter "Public Official Election Act"), would be changed to the violation of Article 254 (2) 3 of the Public Official Election Act (violation of Restriction on Election Campaign Period) and there is sufficient evidence for conviction of the facts charged for violating the

C. On September 23, 2005, after the receipt of the notification of the receipt of the trial record, the public prosecutor again presented the document stating “written grounds for appeal” to the public prosecutor, and only in this document, specifically indicate the grounds for mistake of facts and misapprehension of legal principles in the lower judgment.

2. Determination

Article 361-3(1) of the Criminal Procedure Act provides that an appellant or his/her defense counsel shall submit a statement of grounds for appeal to the appellate court within 20 days from the date on which he/she receives a notification of the receipt of a trial record, and Article 155 of the Regulation on Criminal Procedure provides that the grounds for appeal to which such notice has been received shall clearly state the grounds for appeal in detail. Article 361-5 of the Criminal Procedure Act provides for 13 reasons for appeal such as violation of the Constitution, Acts,

On the other hand, Article 361-4(1) of the Criminal Procedure Act provides that "when an appellant or defense counsel fails to submit a statement of grounds for appeal within the period prescribed in the preceding Article (20 days from the date of receipt of the notification of receipt of the records of trial), the appeal shall be dismissed by decision: Provided, That this shall not apply in cases where any ground for ex officio examination exists or

However, the appellate brief submitted by the prosecutor on September 2, 2005 is in compliance with the appellate brief period under Article 361-3(1) of the Criminal Procedure Act; however, the appellate brief does not specify the "reason for Appeal" under Article 361-5 of the Criminal Procedure Act as the grounds for appeal against the judgment of the court below; in light of the contents, there are only claims that the appellate court should amend the indictment and there is sufficient proof of guilt as to the changed facts charged. Thus, it cannot be viewed as the submission of legitimate appellate brief.

Furthermore, even if there is no submission of the statement of reasons for appeal, it shall be examined whether there is a reason for ex officio investigation, and "reasons for ex officio investigation" under the proviso of Article 361-4(1) of the Criminal Procedure Act refers to the reason to be investigated by the court ex officio in cases where the parties do not assert such grounds as the application of statutes or mistake in statutory interpretation (see Supreme Court Order 2002Mo338, May 16, 2003

In the statement of grounds of appeal submitted on September 23, 2005, the prosecutor asserts that the court below's decision to the effect that "reasons for ex officio investigation" under the proviso of Article 361-4 (1) of the Criminal Procedure Act constitutes "reasons for ex officio investigation" is "reasons for ex officio investigation" under Article 361-4 (1) of the Public Official Election Act in cases where the court below acquitted the violation of Article 256 (3) 6 of the Public Official Election Act by examining whether the violation of the restriction on the period for election campaign under Article 254 (2)

On the other hand, Article 298(2) of the Criminal Procedure Act provides that "the court shall, if deemed reasonable in light of the progress of the trial, request the addition or modification of facts charged or applicable provisions of Acts and subordinate statutes." However, as the court's decision whether to request the prosecutor to change the indictment belongs to the discretion of the court, it cannot be deemed unlawful on the ground that the prosecutor did not request the change of the indictment (see Supreme Court Decision 93Do113, Jul. 13, 1993). Accordingly, the court below's decision does not determine that the above reasons alleged by the prosecutor are the grounds for ex officio investigation, and even after examining records, the court may not find the grounds for ex officio investigation, such as the application of Acts and subordinate statutes

3. Conclusion

Therefore, the appeal by the prosecutor shall be dismissed in accordance with Articles 361-4(1) and 361-3(1) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Domin-type (Presiding Judge) Cho Jong-sung (Presiding Judge)