[1] The purport of Article 142(1) and (5) of the Rules on Criminal Procedure / Where the court has convicted the defendant or his/her defense counsel of the charges stated in the written application for changes in the indictment without delivering and delivering a duplicate of the written application for changes in the indictment, whether the court’s error which did not deliver and deliver a duplicate of the written application for changes in the indictment constitutes a violation of the statutes that affected the judgment (affirmative in principle)

[2] In a case where the defendant was indicted for the crime of indecent act by compulsion and was acquitted at the court of first instance, the prosecutor submitted an application for permission of modification of an indictment to add the crime of obscenity in the appellate trial, and the court below reversed the judgment of the court of first instance and convicted the defendant of the conjunctive charges by proceeding the trial without delivering or delivering a copy of the written application for modification of an indictment to the prosecution, the case holding that

[1] The court shall promptly notify the defendant or his/her defense counsel of the reason for addition, withdrawal, or modification of facts charged or applicable provisions of law (Article 298(3) of the Criminal Procedure Act). Article 142(1) of the Rules on Criminal Procedure provides that “When the prosecutor intends to add, withdraw, or modify facts charged or applicable provisions of law stated in the indictment pursuant to Article 298(1) of the Criminal Procedure Act, he/she shall submit to the court an application for changes in indictment which includes the purport thereof.” Paragraph (5) of the same Article provides that “Notwithstanding the provisions of Paragraph (1) of the same Article, the court may grant an oral permission of changes in indictment in the trial court in which the defendant financess, or where the defendant agrees, in principle, where the prosecutor intends to apply for changes in indictment, he/she may apply for changes in indictment by oral statement. This is to limit the scope of the trial in writing and to enable the defendant to exercise his/her defense right by clarifying the procedure.”

According to Article 142(2) and (3) of the Regulation on Criminal Procedure, where the public prosecutor makes a written request for changes in indictment, the public prosecutor shall attach copies corresponding to the number of the accused, and the court shall immediately deliver copies thereof to the accused or his defense counsel.

In light of the contents and purport of the above provisions on the procedures for the amendment of a bill of amendment, if the court grants permission to amend a bill of amendment without delivering and delivering a duplicate of the written application for the amendment of a bill of amendment, the court’s error that did not deliver and deliver a duplicate of the written application for the amendment of a bill of amendment constitutes a violation of the statutes that affected the conclusion of the judgment. However, if there are special circumstances where the defendant and defense counsel are not likely to infringe upon the defendant’s defense right and defense counsel’s defense counsel’s defense right or defense counsel’s defense counsel’s right of defense or defense counsel’s defense counsel’s defense counsel’s right

[2] The case holding that the court below erred by misapprehending the legal principles as to the procedure for the modification of a bill of indictment, which affected the conclusion of the judgment, in case where the court below reversed the judgment of the court of first instance which acquitted the previous charged facts, and found the defendant guilty of the charges on the ground that the crime of obscenity differs from the crime of indecent act, since the crime of obscenity differs from each other in terms of form of act, protection of legal interest, nature of the crime and statutory punishment, etc., the previous charged facts and the crime of obscenity can be deemed as essentially infringing upon the defendant's defense or defense counsel's defense right as they are the object of trial and the defense of the defendant.

[1] Article 298(3) of the Criminal Procedure Act; Article 142(1), (2), (3), and (5) of the Regulation on Criminal Procedure / [2] Article 298(3) of the Criminal Procedure Act; Article 142(1), (2), and (3) of the Regulation on Criminal Procedure

[1] Supreme Court Decision 2009Do1830 Decided June 11, 2009 Supreme Court Decision 2017Do5122 Decided June 8, 2017

Defendant

Defendant

Law Firm Gai Law Firm, Attorneys Park Ho-su et al.

Changwon District Court Decision 2018No2934 decided May 16, 2019

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

1. The court shall promptly notify the defendant or his/her defense counsel of the reason for the addition, withdrawal, or modification of facts charged or applicable provisions of law (hereinafter referred to as “the modification of indictment”). Article 142(1) of the Rules on Criminal Procedure provides that “In cases where the prosecutor intends to add, withdraw, or modify facts charged or applicable provisions of law stated in the indictment pursuant to Article 298(1) of the Criminal Procedure Act, he/she shall submit to the court an application for the modification of the indictment stating the purport thereof,” and Article 142(5) of the Rules on Criminal Procedure provides that “Notwithstanding the provisions of paragraph(1), the court may allow the modification of the indictment by oral statement where the defendant would benefit the defendant or consent of the defendant.” As such, in the event the prosecutor intends to apply for the modification of the indictment, it is in principle in writing, and in exceptional cases where the defendant would benefit the defendant or consent of the defendant, it is possible to apply for the modification of the indictment by oral statement (see, e.g., Supreme Court Decision 2017Do5122).

According to Article 142(2) and (3) of the Regulation on Criminal Procedure, where the public prosecutor makes a written request for changes in indictment, the public prosecutor shall attach copies corresponding to the number of the accused, and the court shall immediately deliver copies thereof to the accused or his defense counsel.

In light of the contents and purport of the above provisions on the procedures for the amendment of a bill of amendment, if the court grants permission for the amendment of a bill of amendment without delivering and delivering a duplicate of the written application for the amendment of a bill of amendment, the court’s error that did not deliver and deliver the duplicate of the written application for the amendment of a bill of amendment constitutes a violation of the Acts and subordinate statutes affecting the conclusion of the judgment: Provided, That if there are special circumstances where it is deemed that the defendant’s defense right or defense counsel’s defense counsel did not infringe upon the defendant’s defense right or defense counsel’s defense counsel’s right of defense or defense counsel’s right of defense has not been infringed on the date of the trial, such as where the contents of the amendment of a bill of amendment do not interfere with the defendant’s defense right and defense counsel’

2. According to the record, the following facts are revealed.

A. The prosecutor prosecuted the Defendant against the crime of indecent act by compulsion, stating that “the Defendant was guilty of indecent act by compulsion of fuckbucks, which he was seated next place while looking at obscene videos in a high speed bus, and committed indecent act.” The Defendant asserted that there was no indecent act in the first instance court, and the first instance court acquitted the Defendant on the ground that there was insufficient proof of indecent act and intentional act. The Prosecutor appealed against the judgment of the first instance.

B. On April 15, 2019, at the lower court, the prosecutor submitted a written application for changes of indictment, which adds the crime of public performance and obscenity to the effect that “the Defendant committed an obscene act by engaging in self-defense at the time, time, and place indicated in the above facts charged.”

On April 18, 2019, the lower court: (a) on the second trial on April 18, 2019, the Defendant stated the facts charged, the criminal facts, and the applicable provisions of the indictment in accordance with the said written application for changes of indictment; and (b) the Defendant and the defense counsel stated that they denied the ancillary charges. The lower court stated that the Defendant and the defense counsel provided the opportunity to make a final statement, and that the Defendant did not commit indecent act in relation to the facts charged by

C. On May 16, 2019, the lower court reversed the first instance judgment on the date of the second trial, and found the Defendant guilty of the conjunctive charges, and sentenced the Defendant to a fine of KRW 4 million.

Meanwhile, after the closing of argument in the lower court, a duplicate of the application for changes in indictment was served on the defense counsel on April 19, 2019, and on May 3, 2019.

3. We examine these facts in light of the legal principles as seen earlier.

The ancillary facts charged by the prosecutor requesting changes in the indictment at the original trial are about the crime of obscenity, and there are differences in the form of conduct, legal interest, nature of the crime and statutory punishment compared to the previous facts charged. The crime of indecent act by compulsion does not directly affect the establishment of the crime, but the crime of obscenity is a crime of openly committing indecent act. Therefore, the previous facts charged and the ancillary facts charged are different from those subject to adjudication and defense of the defendant.

Nevertheless, the lower court reversed the first instance judgment that acquitted the Defendant on the previous facts charged after closing the pleadings on the day without delivering or delivering a duplicate of the written application for changes in indictment to the Defendant or his defense counsel, and convicted the Defendant of the ancillary charges. This can be seen as essentially infringing the Defendant’s right to defense or defense counsel’s right to defense. The lower court erred by misapprehending the statutes on the procedures for changes in indictment,

Of the judgment of the court below, the part of the ancillary charge should be reversed. As long as the part of the ancillary charge is reversed, the whole judgment of the court below, including the primary charge, should

4. The Defendant’s appeal is with merit, and 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

Justices Noh Jeong-hee (Presiding Justice)