[1] The case holding that a prosecutor does not constitute a legitimate ground for appeal in case where the prosecutor stated "reason for appeal" in the "reason for appeal" in the petition of appeal against the judgment of not guilty in the first instance

[2] The case holding that there is no legitimate reason for appeal in the statement of grounds for appeal submitted by the prosecutor

[3] The meaning of "reasons for ex officio investigation" under the proviso of Article 361-4 (1) of the Criminal Procedure Act

[4] Whether the court's ex officio does not recognize a minor criminal fact beyond the content of the charge without the amendment of the indictment (negative with qualification)

[5] The case holding that the first instance court's failure to recognize the crime of "violation of restrictions on an election campaign period" under Article 254 (2) 3 of the Criminal Procedure Act does not constitute "reasons for ex officio investigation" under the proviso of Article 361-4 (1) of the same Act in judging not guilty of the charge of violating the prohibition of a party members' rally" under Articles 256 (3) 6 and 141 (1) of the Act on the Election of Public Officials and the Prevention of Unlawful Election Act

[6] In a case where the appellant or his defense counsel submitted the statement of grounds of appeal within the statutory period, but failed to specify the grounds of appeal in detail, whether the appeal may be dismissed by decision under Article 361-4 (1) of the Criminal Procedure Act (negative)

[1] The case holding that the above provision in the petition of appeal does not constitute the entry of legitimate grounds for appeal in the case where only the phrase "reason for appeal" in the "reason for appeal" in the petition of appeal concerning the judgment of not guilty in the first instance submitted by the prosecutor is stated, but no other specific grounds for appeal are specified

[2] The case holding that it cannot be viewed as a legitimate ground for appeal in a case where the prosecutor did not specifically state the grounds for appeal stipulated in Article 361-5 of the Criminal Procedure Act on the grounds of objection against the judgment of the court of first instance on the grounds of appeal submitted by the prosecutor, and only asserted that there is sufficient proof of guilt in the appellate court on the changed facts charged

[3] The term "grounds for ex officio investigation" under the proviso of Article 361-4 (1) of the Criminal Procedure Act means the grounds for ex officio investigation by the court where the parties do not assert any assertion, such as the application of statutes or the mistake in statutory interpretation.

[4] In a case where the court recognizes a minor criminal facts included in the criminal facts for which a public prosecution was instituted within the scope recognized as identical to the facts charged, if it deems that there is no concern about causing substantial disadvantage to the defendant's exercise of his/her right to defense in light of the progress of trial, it may recognize ex officio a criminal facts different from the facts charged as stated in the indictment, even if the indictment was not modified. However, even in such a case, if the facts charged are not punished for the reason that in comparison with the facts charged for which a public prosecution was instituted, if the facts charged are serious and the indictment was not modified, it shall not be deemed illegal unless it is recognized as significantly contrary to justice and equity in light of the purpose of the criminal procedure, such as prompt discovery of substantial truth by appropriate procedure,

[5] The case holding that the first instance court's failure to recognize the crime of "violation of restrictions on an election campaign period" under Article 254 (2) 3 of the Criminal Procedure Act does not constitute "reasons for ex officio investigation" under the proviso of Article 361-4 (1) of the same Act in judging not guilty of the facts charged as to "violation of the prohibition against a party members' rally" under Articles 256 (3) 6 and 141 (1) of the Public Official Election and Prevention of Unlawful Election Act

[6] Article 361-4(1) of the Criminal Procedure Act provides that an appellant or defense counsel shall dismiss an appeal by decision, except where the grounds for ex officio examination exist or the grounds for appeal are specified in the petition of appeal, if the appellant or defense counsel fails to submit the statement of appeal within the period under Article 361-3(1) of the same Act. Thus, even if the appellant or defense counsel specifically stated the grounds for appeal in the petition of appeal, if the grounds for appeal are not specified in the statement of appeal within the statutory period, it shall not be dismissed by decision pursuant to Article 361-4(1) of the Criminal Procedure Act, on the ground that the grounds for appeal

[1] Article 361-4 (1) of the Criminal Procedure Act / [2] Article 361-4 (1) of the Criminal Procedure Act / [3] Article 361-4 (1) of the Criminal Procedure Act / [4] Articles 254 and 298 of the Criminal Procedure Act / [5] Article 361-4 (1) of the Criminal Procedure Act, Article 141 (1), Article 254 (2) 3, and Article 256 (3) 6 of the Public Official Election Act / [6] Article 361-4 (1) of the Criminal Procedure Act

[1] Supreme Court Decision 2003Do2219 decided Dec. 12, 2003 (Gong2004Sang, 200) / [3] Supreme Court Order 2002Mo338 decided May 16, 2003 (Gong2003Ha, 1549) / [4] Supreme Court Decision 90Do1229 decided Oct. 26, 1990 (Gong190, 2475), Supreme Court Decision 93Do3058 decided Dec. 28, 1993 (Gong194Sang, 587), Supreme Court Decision 2001Do4013 (Gong202Sang, 3244) decided Dec. 11, 2001; Supreme Court Decision 2005Do5365 decided Oct. 26, 2005 (Gong20536, Dec. 25, 2004)

Defendant

Prosecutor

Attorney Gangwon-won et al.

Seoul High Court Order 2005No1719 dated October 11, 2005

The order of the court below is reversed, and the case is remanded to Seoul High Court.

1. According to the records, the prosecutor's petition of appeal in this case against the judgment of innocence of the first instance only states only the phrase "guilty person and misunderstanding of legal principles" in the "reason for Appeal," but does not state any other specific reason for appeal. It is reasonable to deem that the above statement in the petition of appeal does not constitute a legitimate reason for appeal (see Supreme Court Decision 2003Do2219, Dec. 12, 2003). Further, in the statement of appeal filed by the prosecutor on September 2, 2005, which is the deadline for submitting the appellate brief, the prosecutor submitted on September 2, 2005, the deadline for submitting the appellate brief, there is no specific reason for appeal as provided in Article 361-5 of the Criminal Procedure Act, and there is only a claim that the appellate court must amend the bill of appeal and there is sufficient evidence for conviction as to the changed facts charged in the appellate brief. Thus, it cannot be viewed as a legitimate

The decision of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to Article 361-4 (1) of the Criminal Procedure Act, as alleged in the reappeal.

2. The term "reasons for ex officio investigation" under the proviso of Article 361-4(1) of the Criminal Procedure Act refers to the reasons to be investigated by the court ex officio in the absence of a party's assertion, such as whether there is an error in the application of statutes or a statutory interpretation (see Supreme Court Order 2002Mo338, May 16, 2003).

Meanwhile, in a case where a court recognizes a minor criminal facts included in the criminal facts charged within the scope that the identity of the facts charged is recognized, if there is no concern about causing substantial disadvantage to the defendant's exercise of his/her right to defense in light of the progress of trial, it may ex officio recognize a criminal facts different from the facts charged as stated in the indictment, even if the indictment was not modified. However, even in such a case, if the facts charged are not punished for the reason that the facts charged are serious in comparison with the facts charged in the indictment, in comparison with the facts charged, if the indictment was not modified for the reason that it does not change the indictment, it shall not be deemed illegal on the ground that the court did not recognize the facts charged ex officio unless it is recognized to be significantly contrary to justice and equity in light of the purpose of the criminal procedure, such as prompt discovery of substantial truth by appropriate procedure (see Supreme Court Decisions 90Do1229, Oct. 26, 190; 93Do3058, Dec. 28, 1993)

In light of the records, the "violation of the prohibition of a party members' rally" under Articles 256 (3) 6 and 141 (1) and "violation of the restriction on an election campaign period" under Article 254 (2) 3 of the Act on the Election of Public Officials and the Prevention of Election Unlawful Act shall be deemed to be different from the elements of the crime in preparation for the adopted child, and the latter shall not be related to the former, and the latter shall not be deemed to have any relation with the former, even though the indictment was not modified even though the indictment was not approved, it does not appear that the latter's failure to admit the guilty on the grounds that the indictment was not modified for the reason that it goes against justice and equity in light of the purpose of criminal procedure, i.e. prompt discovery of substantial truth by due process, and therefore, the first instance court's failure to recognize the latter's crime while judging not guilty of the charge containing the electronic crime cannot be deemed to be "reasons for ex

The court below's decision that there was no ground for ex officio examination in the judgment of the court of first instance includes the above purport, and there is no error of law such as a omission of judgment as to the ground for ex officio examination as alleged in the reappeal.

3. Furthermore, Article 361-4(1) of the Criminal Procedure Act provides that an appellant or his/her defense counsel shall dismiss an appeal by decision, except where the grounds for ex officio examination exist or the grounds for appeal are specified in the petition of appeal, if the appellant or his/her defense counsel fails to submit the grounds for appeal within the prescribed period of time under Article 361-3(1) of the same Act. Thus, even if the appellant or his/her defense counsel specifically stated the grounds for appeal in the petition of appeal, if the legitimate grounds for appeal are not specified within the prescribed period of time, such grounds for appeal shall not be dismissed by decision pursuant to Article 361-4(1) of the Criminal Procedure Act, considering that the grounds for appeal are not submitted within the prescribed period of time (see Supreme Court Order 2002Mo265, Dec. 3,

Therefore, even if the appellate brief submitted by the prosecutor on September 2, 2005 does not contain a legitimate reason for appeal as seen above, as long as the appellate brief is lawfully submitted within the statutory period, it shall be deemed that the appellate brief is not submitted within the statutory period, and thus, it shall not be dismissed by the decision pursuant to Article 361-4(1) of the Criminal Procedure Act.

Nevertheless, the court below rejected the prosecutor's appeal on the ground that even if the prosecutor failed to specify the grounds for appeal in detail and submitted the grounds for appeal in the statutory period, this constitutes a case where the grounds for appeal are not submitted within the statutory period, and thus, the prosecutor's appeal can be dismissed pursuant to Article 361-4 (1) of the Criminal Procedure Act. In light of the above legal principles, it is clear that the court below erred in the misapprehension of legal principles as to Article 361-4 (1) of the Criminal Procedure Act, which affected the conclusion of the judgment. Thus, the court below's order cannot be maintained any further.

4. The order of the court below is reversed on the grounds of the above ex officio reversal, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)