[1] In a case where a prosecutor institutes a public prosecution without submitting a written indictment (negative in principle)

[2] In a case where the prosecutor prepared a list of crimes, which are part of the facts charged, in an electronic form that can be opened or printed through a computer program, and the storage media itself in which the electronic form is stored, along with the written indictment, the validity of the indictment (=the part as stated in the indictment)

[1] Article 254(1) of the Criminal Procedure Act provides that the public prosecutor's indictment is a litigation seeking a trial for a specific criminal case against the court, and Article 254(3) of the Criminal Procedure Act provides that "in case of instituting a public prosecution, the indictment shall be submitted to the competent court." Article 254(3) of the same Act provides that the name of the defendant and other matters by which the defendant can be identified, name of the crime, facts charged, and applicable provisions of Acts shall be stated in the indictment, and Article 266 of the Criminal Procedure Act provides that the

Meanwhile, Article 57(1) of the Criminal Procedure Act provides, “The document prepared by a public official shall contain the date of preparation and the public office to which he/she belongs, and shall write his/her name and affix his/her seal or sign thereon,” and the indictment prepared by a public official falls under the “documents prepared by a public official,” and thus, the indictment must have the name and seal

As can be seen, the Criminal Procedure Act, which employs a written and strict form of indictment, aims to clarify the subject matter of adjudication to be progress in the future by clearly stating in writing the subject matter of adjudication in order to ensure the defendant’s right to defend. As such, submission of a written indictment ought to be deemed an essential element for the establishment of litigation, such as institution of public prosecution. In addition, the right to a trial in accordance with the procedure prescribed by the procedural law constitutes “the right to a trial by law” as provided by Article 27(1) of the Constitution. Therefore, in a case where a public prosecution is instituted without submitting a written indictment, barring any special provision allowing institution of public prosecution, it cannot be deemed that the public prosecution has been established as a procedural act because it cannot be deemed that

[2] In a case where a prosecutor prepares an electronic document in which he/she can open or print out a list of crimes, which is part of the facts charged, through a computer program, and then submits the storage media itself in the electronic form without printing it in a paper document, the document can only be deemed to have been prosecuted, and the document in the electronic form stored in the storage media cannot be deemed to have been prosecuted. This is because there is no separate provision allowing a public prosecution in such form, and the storage media or electronic form may not be deemed to have been “written” as part of the indictment. This is because there is a practical need to allow a public prosecution in such a form of electronic document, or the defendant and his/her defense counsel responded to arguments without raising an objection.

In addition, according to Article 142 of the Regulation on Criminal Procedure, in a case where the prosecutor intends to change the indictment, he/she shall submit to the court a written application for modification of the indictment stating the purport of the modification of the indictment, and in exceptional cases where the defendant is beneficial to or consented to the defendant in the courtroom, an oral application is allowed. Thus, the above legal principle applies likewise to cases where the prosecutor prepares an indictment to change the indictment in the form of an electronic document in which the document is stored

In addition, in cases where a prosecutor institutes an indictment or submits an application for modification of a bill of indictment in the above manner, the court should determine whether the document in electronic form stored in the storage device is specified in the written indictment or the written application for modification of a bill of indictment without considering the part of the document stored in the storage device. If the facts charged are not specified, the prosecutor is asked to ask the prosecutor to specify the document, and if the prosecutor does not specify it, the prosecution is dismissed.

[1] Article 27(1) of the Constitution of the Republic of Korea; Articles 57(1), 254, and 266 of the Criminal Procedure Act / [2] Article 27(1) of the Constitution of the Republic of Korea; Articles 57(1), 254, 266, 298, and 327 subparag. 2 of the Criminal Procedure Act; Articles 141 and 142 of the Regulation on Criminal Procedure

Defendant 1 and three others

Defendants

Law Firm Low StiS Law Firm, Attorneys Seo Young-young et al.

Daejeon District Court Decision 2013No525 Decided February 11, 2015

The judgment of the court below is reversed, and the case is remanded to Daejeon District Court Panel Division.

1. As to the grounds of appeal by Defendants 1, 2, and 3

A. Article 254(1) of the Criminal Procedure Act provides that a public prosecution shall be instituted by a public prosecutor for a specific criminal case against the court, and Article 254(3) of the same Act provides that “In the case of instituting a public prosecution, the public prosecution shall be instituted to the competent court.” Article 254(3) of the same Act provides that 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 shall be stated in the indictment, and Article 266 of the Criminal Procedure Act provides that

Meanwhile, Article 57(1) of the Criminal Procedure Act provides, “The document prepared by a public official shall contain the date of preparation and the public office to which he/she belongs, and shall write his/her name and affix his/her seal or sign thereon,” and the indictment prepared by a public official falls under the “documents prepared by a public official,” and thus, the indictment must have the name and seal

As can be seen, the Criminal Procedure Act, which employs a written and strict form of indictment, aims to clarify the subject matter of adjudication to be progress in the future by clearly stating in writing the subject matter of adjudication in order to ensure the defendant’s right to defend. As such, submission of a written indictment ought to be deemed an essential element for the establishment of litigation, such as institution of public prosecution. In addition, the right to a trial in accordance with the procedure prescribed by the procedural law constitutes “the right to a trial by law” as provided by Article 27(1) of the Constitution. Therefore, in a case where a public prosecution is instituted without submitting a written indictment, barring any special provision allowing institution of public prosecution, it cannot be deemed that the public prosecution has been established as a procedural act because it cannot be deemed that

Therefore, in cases where a prosecutor prepares an electronic document in which he/she can open, read, or print out through a computer program, and then submits the storage medium itself in which the above electronic form of document is stored without submitting it in a paper document, the prosecution can only be deemed to have been instituted, and the part of the document stored in the above storage medium cannot be deemed to have been instituted. This is because there is no separate provision allowing such a public prosecution, and the storage medium or document in an electronic form cannot be deemed to have been “written” as part of the indictment. This is because the quantity of the above electronic form of document is limited to the quantity of the document, and there is a practical need to allow such a public prosecution, or the defendant and his/her defense counsel responded to the pleading without raising any objection.

In addition, according to Article 142 of the Regulation on Criminal Procedure, in a case where the prosecutor intends to change the indictment, he/she shall submit to the court a written application for modification of the indictment stating the purport of the modification of the indictment, and in exceptional cases where the defendant is beneficial to or consented to the defendant in the courtroom, an oral application is allowed. Thus, the above legal principle applies likewise to cases where the prosecutor prepares an indictment to change the indictment in the form of an electronic document in which the document is stored

In addition, in cases where a prosecutor institutes an indictment or submits an application for modification of a bill of indictment in the above manner, the court should determine whether the document in electronic form stored in the storage device is specified in the written indictment or the written application for modification of a bill of indictment without considering the part of the document stored in the storage device. If the facts charged are not specified, the prosecutor is able to ask the prosecutor to specify it, and if the prosecutor does not specify it, the prosecution is dismissed.

B. According to the records of this case, the following facts are revealed.

(1) The summary of the facts charged as stated in the indictment submitted to the first instance court from June 23, 2010 to June 16, 201, Defendant 1 and Defendant 2, together with Defendant 4, such as Defendant 1’s list of crimes attached to the indictment from June 23, 2010 to June 16, 201, are as follows: (a) total of 32,065 film or drama, etc.; and (b) as indicated in the attached Table 2 and 3 of the indictment, Defendant 2, etc. in collusion with the non-indicted 438,024 film or drama, etc. in collusion with the non-indicted 438,024 film or drama, etc. as indicated in the attached Table 2 and 3 of the indictment; and (c) had other members download it, thereby infringing on the copyright holder’s property rights.

(2) The main text of the indictment and the attached Forms 1, 2, 3 include only the files Nos. 1, 2, and 3 only part of the total number of the work logs, the size of the files, the date and time of the work log, the ID of the work log, etc., and the remaining work logs do not contain such specific contents.

(3) However, at the end of each crime list as above, the statement to the effect that “if output is made in paper documents, the quantity shall be submitted in a CD in a serious relation.” The CD attached to the written indictment by the prosecutor is stored with the X-cell file containing the title and size of the file for each type of business, the date and time of the business, and the ID of the trader.

(4) When the prosecutor submits an application for changes in the indictment to delete some of the business lines 2 and 3 of the crime sight table 1 in the court below, and submits an application for changes in the indictment to add some of the business lines added to the business lines 1 of the crime sight table 1, he shall attach an additional sight tag stating the title and size of the business files, the date and time of the business, and the number of the business lines as to the business lines added to the business lines 1 of the crime sight table 1, and submits a CD in which the business files for the changed total business lines are stored, including the title and size of the files, the date and time of the business lines, and the ID of the business lines, and the changes in the indictment was made on the seventh day of the court below.

C. Examining the foregoing facts in light of the legal principles as seen earlier, the CDs attached to the indictment or the written application for changes in indictment or the stored X-cellcul file cannot be deemed to be “written” as part of the indictment, and thus, the part stated in the above X-cellul file cannot be deemed to have been prosecuted. However, only the part mentioned in the written application for indictment or the written application for changes in indictment (including the crime inundation or additional daily chart attached thereto; hereinafter the same shall apply) can be deemed to have been prosecuted.

Meanwhile, in the crime of violation of the Copyright Act, several copyright infringements constitute separate crimes. As such, among the facts charged in this case, the title and size of the files published in the instant case, the workd date and time, and the workd IDs as stated in the indictment or the written application for modification of a bill of indictment may be deemed to have been specified in the facts charged. However, the remaining workd items are only stated in the total number of times, but they cannot be said to have been specified in the facts charged because all the files are written as well as the workd files.

If so, the court below ordered the prosecutor to specify the facts charged regarding the remaining business cases, and should have dismissed the prosecution against this part unless it is specified. The court below did not take such measures and made an substantive judgment on this part. The court below erred by misapprehending the legal principles on the method of prosecution and the specific facts charged, thereby adversely affecting the conclusion of the judgment. The ground of appeal by the defendant 1, 2, and the defendant company is with merit.

D. Of the judgment of the court below, the part of the facts charged against Defendant 1, Defendant 2, and Defendant Company as to the remaining cases should be reversed for the same reason. Since this part was sentenced to a single sentence on the ground that the remaining parts of the court below found guilty and the facts charged against the above Defendants were in the relation of concurrent crimes or single comprehensive crimes under the former part of Article 37 of the Criminal Act, the judgment of the court below against

2. As to the part on Defendant 4

As seen above, the judgment of the court below should be reversed for the benefit of the above defendants on the grounds that the grounds of appeal by the defendants 1, 2, and 2 are with merit. The grounds of reversal also share to the defendant 4 who is in the co-defendant relationship with the above defendants, so the part against the defendant 4 of the judgment below should also be reversed pursuant to Article 392 of the Criminal Procedure

3. Conclusion

Therefore, without examining the remaining grounds of appeal by Defendant 1, Defendant 2, and Defendant 4, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)