The case holding that the crime of quasi-indecent act can be recognized as a quasi-indecent act without any amendment to a bill of amendment where a prosecution was instituted

The case holding that even if a public prosecution was instituted on the injury resulting from rape, the crime of quasi-indecent act by compulsion may be recognized without a separate procedure for modification of indictment, since it is recognized as identical to the facts charged of the crime of bodily injury resulting from rape and sufficiently

Article 298 of the Criminal Procedure Act, Articles 299 and 301 of the Criminal Act

Supreme Court Decision 99Do1530 Decided November 9, 1999 (Gong1999Ha, 2545) Supreme Court Decision 2001Do3867 Decided October 30, 2001

Defendant

Defendant and Prosecutor

Law Firm Han, Attorney Lee dilution

Seoul High Court Decision 2007No1029 decided August 23, 2007

Each appeal shall be dismissed.

We examine the grounds of appeal.

1. As to the Defendant’s ground of appeal

A. As to the part concerning the modification of indictment

In a case where a court recognizes the criminal facts that are included in the criminal facts for which a public prosecution is instituted within the extent consistent with the facts charged, and where it deems that there is no concern that the exercise of the defendant's right to defense may be seriously disadvantaged, in light of the progress of the trial, it may, ex officio, recognize the facts charged differently from the facts charged as stated in the indictment (see Supreme Court Decision 9Do1530, Nov. 9, 199).

According to the reasoning of the judgment below, it is difficult to view that at the time of the crime of this case, the defendant had the intent to commit rape even though it is possible to recognize the criminal intent of indecent act by compulsion, and since the crime of rape injury included the crime of quasi-indecent act by compulsion as stated in the indictment, even if the defendant is punished as the crime of quasi-indecent act by compulsion, the court below acknowledged the charge of rape injury as the crime of quasi-indecent act without changing the indictment on the ground that there is no possibility that the punishment of

According to the records, the defendant has consistently denied the crime of this case from the investigative agency to the court of the court below, and even if there was an act identical to the victim's statement in domestic affairs, such act alone is not sufficient to recognize the criminal intent of rape. The crime of quasi-indecent act by compulsion, which the court below found guilty, is identical to the facts charged of the crime of rape, and is included in the charged facts, and sufficiently examined until the court below. Under these circumstances, even if the defendant is punished for quasi-indecent act without the procedure of changing the indictment, it cannot be viewed that there is a concern about the substantial disadvantage to exercise the defendant's right to defense. Thus, there is no error in the misapprehension of legal principles as to

B. On the incomplete hearing of quasi-indecent acts, violation of the rules of evidence

In light of the records, it is proper that the court below found the defendant guilty of quasi-indecent act by force based on the adopted evidence, and there is no violation of the rules of evidence as otherwise alleged in the ground of appeal.

2. As to the Prosecutor’s Grounds of Appeal

Examining the judgment below in light of the records, it is proper that the court below acquitted the defendant on the charge of rape of this case on the ground that there is no proof, and there is no violation of the rules of evidence as otherwise alleged in the

3. Conclusion

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

Justices Lee Hong-hoon (Presiding Justice)