[1] The contents of the principle of an indictment only and the standard for determining whether it violates the principle of an indictment only

[2] Legal effect of an indictment against the principle of an indictment only

[1] Articles 254(1) and (3), 327 subparag. 2 of the Criminal Procedure Act, Article 118(2) of the Regulation on Criminal Procedure / [2] Articles 254(1) and (3), 327 subparag. 2 of the Criminal Procedure Act, Article 118(2) of the Regulation on Criminal Procedure

[1] [2] Supreme Court en banc Decision 2009Do7436 Decided October 22, 2009 (Gong2009Ha, 1921) / [1] Supreme Court Decision 93Do3145 Decided March 11, 1994 (Gong194Sang, 1233) / [2] Supreme Court Decision 2009Do7567 Decided November 26, 2009, Supreme Court Decision 2012Do5220 Decided August 30, 2012

Defendant

Prosecutor

Law Firm Mapon, Attorneys Cho Jae-in et al.

Seoul Western District Court Decision 2011No1235 decided February 16, 2012

The appeal is dismissed.

The grounds of appeal are examined.

1. The principle of an indictment only shall, in principle, be submitted when a public prosecutor institutes a public prosecution, and shall not attach documents or other things that may cause the court’s prejudice on the case (Article 118(2) of the Rules on Criminal Procedure). It is so-called “Prohibition of entry of other facts,” which includes the contents of the principle of an indictment only (see Supreme Court Decision 93Do3145, Mar. 11, 1994). Whether the violation of the principle of an indictment only is included in the contents of the indictment, including documents or other things attached or quoted in the indictment, and whether the facts recorded in the indictment, other than those required by statutes, may hinder a judge or jury from understanding the substance of the crime (see Supreme Court en banc Decision 2009Do7364, Oct. 29, 2009).

In light of the above standards, in a case where a prosecution is deemed to be an indictment in violation of the principle of an indictment only, it shall be deemed that the procedure constitutes an invalid one, and thus, a judgment of dismissing a public prosecution shall be sentenced (Article 327 subparag. 2 of the Criminal Procedure Act). However, in a case where there is no objection from the defendant as to the method stated in the indictment, and the court is deemed not to hinder the defendant from understanding the substance of the crime, and the examination of evidence is completed as the result of the trial proceedings and the judge’s conviction formation is completed, it shall not be deemed that there is no dispute as to the validity of the proceedings already progress by asserting the violation of the principle of an indictment only in light of the dynamic stability of the litigation proceedings and the ideology of litigation economy (see Supreme Court en banc Decision 2005Da32720, supra). However, as long as an objection is raised from the defendant’s side, the procedure has been

2. On the grounds delineated below, the court below reversed the part of the judgment of the court of first instance, and rendered a judgment dismissing the prosecution, on the grounds that the indictment charge on the part I (hereinafter “this part of the indictment charge”) against the principle of an indictment only constitutes a case where the indictment procedure is null and void due to the violation of the law.

A. In light of the name of the crime and applicable provisions of the indictment in this case, if this part of the facts charged are appropriately stated to the extent necessary to specify the facts constituting the crime, it will be listed in the indictment [criminal facts] (1) and (2). All of the facts of the indictment in this case [the cognization of violent force in the area of ○○○○ prior to the suppression of force], [the background of the '○○○○○○○○○○○○○○○○○○○○○○○○’’’’’’s ], [the background of the supnating force], [the purpose of systematic direction and establishment of a system for command], [the formation of unity

B. The facts charged are written in mind of the crime of violation of the Punishment of Violences, etc. Act (hereinafter “Assault Punishment Act”), violation of the Punishment of Violences Act (Interference with the duties of organizations, etc.), violation of the Punishment of Violences Act (Intimidation by groups, deadly weapons, etc.), and violation of the Punishment of Violences Act (collective intimidation by groups, etc.), and violation of the Punishment of Violences Act (collective intimidation by organizations, etc.). The crime is charged against the Defendant. In light of the circumstances where the statutory penalty is much heavier than that of the crime of interference with business or is aggravated than that of the crime, a strong conviction of the Defendant, who can sufficiently restrain the Defendant from committing the crime.

C. This part of the facts charged is subject to the Defendant’s criminal records or intimidation and interference with business using the status of the organization to which the Defendant belongs, and therefore, it is necessary to record the Defendant’s criminal records, motive or circumstance of the crime, circumstances constituting the background of the crime, etc. for the purpose of specifying the facts charged. However, all of the facts (the combination of ○○○○ area violence prior to the scopicization of the ○○○○ region prior to the scopicization of the scopicization of the scopicization of the scopicization of the scopicization of the scopicization of the scopicization of the scopic system) are limited to the scopical behavior of the violent organizations located in the region where the Defendant was located along with the following [the scopic background

In addition, if the prosecutor entered the part of the charge into the circumstances necessary for the specification of the facts charged (i.e., the calendar background of the “○○ Station”) below [the calendar background of the “○○ Station type”] (i.e., the calendar background of the “○○ Station type”], (ii) the process of the △△△ model, (iii) the process of homicide by the Nonindicted Party, (iv) the attempted murder by the Nonindicted Party, and (v) the process of interference with the Emergency Countermeasures Committee, etc., of the above part,

D. In a case where the Defendant’s defense counsel stated the instant indictment in violation of the principle of an indictment only, and thereafter stated his opinion after reading out the facts charged on the first trial date of the first instance trial of the first instance trial, the issue of violation of the principle of an indictment only shall be determined on the basis of whether the facts recorded in the indictment may hinder the judge from understanding the substance of the crime by causing prejudice to the judge. Although the court of the first instance notifies the facts in the process of organizing the initial issues in the trial of the first instance trial to the effect that all of the facts in the instant indictment do not coincide with the elements of the crime, and even if the trial proceedings were conducted such as evidence examination, the defect in the method of written indictment cannot be deemed to be cured.

E. Therefore, this part of the facts charged is contrary to the principle of an indictment only because it is written that the judge may hinder the judge from understanding the substance of the facts charged by causing a judge's prejudice.

3. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court appears to be based on the legal doctrine as seen earlier, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on the principle of an indictment only, or by exceeding

4. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)