Where a prosecutor applies for changes in indictment with an application for resumption of pleadings after closing the trial lawfully and notifying the court before the end of the sentence, whether the court has the obligation to permit changes in indictment by resumption of the closed hearing (negative)

Article 298 of the Criminal Procedure Act

Supreme Court Decision 2001Do6484 Decided December 26, 2003 (Gong2004Sang, 286) Supreme Court Decision 2007Do984 Decided June 29, 2007, Supreme Court Decision 2017Do2948 Decided May 11, 2017

Defendant

Prosecutor

Suwon District Court Decision 2017No3488 decided June 25, 2018

The appeal is dismissed.

The grounds of appeal are examined.

The court shall permit changes in the indictment which was made before the closing of the trial to the extent not impairing the identity of the facts charged: Provided, That with respect to changes in indictments made by the prosecutor after the closing of the trial lawfully and the notice of the trial by the date of sentencing, even if it was made together with the application for resumption of pleadings, there is no obligation to permit changes in indictments by the court for resumption of closed hearings (see Supreme Court Decision 2001Do6484, Dec. 26, 2003, etc.).

The lower court upheld the first instance judgment that acquitted the Defendant on the ground that there was no proof of a crime against the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (i.e., Cameras, etc.) among the facts charged in the instant case, without permitting the prosecutor’s application for resumption of pleadings and the application for permission for modification of a bill of indictment submitted on the date of closing the argument. Examining the foregoing legal doctrine in light of the records, the lower court did not err by failing to exhaust all necessary deliberations in violation of the statutes

On the other hand, the prosecutor appealed the entire judgment of the court below, but did not state the grounds of objection in the petition of appeal or the appellate brief concerning the guilty part.

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

Justices Lee Dong-won (Presiding Justice)