[1] The case affirming the court below's decision that found the defendant not guilty on the ground that there are no consistency in the statement of the defendant charged for murder, and there are many circumstances suspected of guilt, or there is no evidence to prove the crime of murder

[2] Whether the court should demand the prosecutor to change the indictment or not belongs to the court's discretion (affirmative)

[3] A case where the court must ex officio recognize facts constituting a crime different from those stated in the indictment without changing the indictment

[1] Articles 308 and 383 of the Criminal Procedure Act / [2] Article 298 of the Criminal Procedure Act / [3] Articles 254 and 298 of the Criminal Procedure Act

[2] Supreme Court Decision 99Do3003 delivered on December 24, 199 (Gong2000Sang, 353) Supreme Court Decision 2005Do2518 Delivered on September 14, 2006 / [3] Supreme Court Decision 2003Do1366 Delivered on May 13, 2003 (Gong2003Sang, 1411) Supreme Court Decision 2005Do9268 Delivered on April 13, 2006 (Gong2006Sang, 821) Supreme Court Decision 2007Do6650 Delivered on December 27, 2007

Defendant

Prosecutor

Attorney Lee Jong-chul

Gwangju High Court Decision 2006No115 decided Dec. 29, 2006

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

We examine the grounds of appeal.

1. The public prosecutor is responsible for proving the facts constituting the offense charged, and the recognition of the facts constituting the offense ought to be based on the evidence having probative value to the extent that there is no reasonable doubt. Thus, if there is no such proof, even if there is a doubt as to the defendant's guilt, the interest

In the instant case, as pointed out in the grounds of appeal, there are various circumstances that are not consistent with the Defendant’s statement and are suspected to be guilty, such as the motive of the crime, the key of the victim, the height of the apartment building of this case, the Defendant’s criminal conduct, etc. However, even if all of such circumstances are incorporated, it is difficult to conclude that the Defendant committed the crime of murder of this case, as shown in the judgment of the court below, to exclude various reasonable questions as

In this regard, the court below's determination that there is no proof of the facts charged of this case or that there is no evidence is acceptable, and there is no violation of the rules of evidence as alleged. The grounds for appeal cannot be accepted.

2. Whether the court requires the prosecutor to change the indictment or not belongs to the discretion, so it cannot be deemed unlawful on the ground that the court did not require the prosecutor to change the indictment (see Supreme Court Decision 9Do3003 delivered on December 24, 199, etc.).

In light of the above legal principles and records, it cannot be deemed that the court below's failure to demand the alteration of indictment due to the crime of murder, death or death resulting from confinement cannot be deemed unlawful. Therefore, there is no ground for appeal on this point.

3. In a case where it is deemed that there is no concern that a substantial disadvantage to the defendant's exercise of his/her right to defense may be caused within the extent consistent with the facts charged, even if the indictment was not modified, the court may ex officio recognize the facts charged different from the facts charged as stated in the indictment, and in such a case where, in comparison with the facts charged by the indictment, if the indictment is not punished for the reason that the facts charged do not seem to have been altered, it is recognized that it goes against justice and equity in light of the purpose of the criminal procedure, such as prompt discovery of substantial truth by due process, if the indictment is not modified, then the court must recognize the facts charged ex officio (see Supreme Court Decision 2003Do1366, May 13, 2003).

According to the reasoning of the lower judgment and the records, the lower court determined that all of the charges were recognized, based on the evidence adopted by the first instance court and the evidence adopted by the first instance court, except for the following facts: (a) the Defendant committed the above crimes against the victim who is under the duty to protect and trust in a de facto marital relationship; (b) the Defendant committed the above crimes with respect to the victim, including “the Defendant: (c) held a bend window after being towed, and opened the victim from the 12th floor; and (d) sealed the victim out of a rail; and (c) the Defendant also committed all the charges except the murder, such as at the time of the victim’s taking advantage of his/her hand and shots in a tape; and (d) there is no concern that the Defendant may have any substantial disadvantage in exercising the Defendant’s right to defense. In full view of the circumstances that the Defendant committed the above crimes with respect to which the victim was under the duty to protect and trust in a marriage; and (c) thus, it cannot be deemed that the above criminal facts alone do not violate the purpose of criminal justice and equity in light of criminal justice.

Thus, the court below should have judged whether the indictment was a crime of assault, bodily injury, arrest, confinement, etc., which is a minor crime included in the indictment, even though there was no change in the indictment of the prosecutor, and should have been punished by the crime. However, the court below did not reach this and sentenced the defendant not guilty. The court below erred in the misapprehension of legal principles as to the scope of adjudication without changing the indictment, which affected the conclusion of the judgment.

The grounds of appeal pointing this out are with merit.

4. Therefore, 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 Yang Sung-tae (Presiding Justice)