[1] Whether the prosecutor's submission of documentary evidence and documentary evidence to the court at the same time as the request for a summary order violates the principle of an indictment only (negative), and whether the court's failure to return the above documentary evidence and documentary evidence to the prosecutor after the request for a formal trial

[2] The grounds for granting the defendant a right to peruse and copy the protocol of the trial under Article 55(1) of the Criminal Procedure Act, and the admissibility of the above protocol of the trial where the defendant did not peruse and copy the protocol of the trial at the time the defendant wishes, even if it was not available for perusal and copy

[3] The time limit to revoke and withdraw the expression of consent to evidence (=the time the examination of evidence is completed)

[1] Article 254(1) of the Criminal Procedure Act, Articles 118(2) and 170 of the Regulation on Criminal Procedure / [2] Article 55(1) of the Criminal Procedure Act / [3] Article 318 of the Criminal Procedure Act

[2] Supreme Court Decision 2003Do3282 Decided October 10, 2003 (Gong2003Ha, 2214) / [3] Supreme Court Decision 97Do1230 Decided September 30, 1997 (Gong1997Ha, 3356), Supreme Court Decision 99Do2029 Decided August 20, 199 (Gong199Ha, 1920), Supreme Court Decision 2004Do2611 Decided June 25, 2004 (Gong2004Ha, 1295)

Defendant

Defendant

Seoul Northern District Court Decision 2006No51 Decided April 26, 2007

The appeal is dismissed.

We examine the grounds of appeal.

1. On the argument that the principle of an indictment only has been violated

When the prosecutor requests a summary order, he/she shall submit the evidentiary documents and evidence necessary for the summary order at the same time as the request for the summary order to the court (Article 170 of the Regulation on Criminal Procedure). Since the summary procedure is a trial through the written hearing, it is recognized as an exception to the principle of an indictment only, the evidentiary documents and evidence were submitted to the court at the same time as the request for the summary order was made, and thus the court cannot be deemed to have violated the principle of an indictment only because the evidentiary documents and evidence are not returned to the prosecutor, even if the formal trial against the summary order was filed, it cannot be said that the procedure of

The judgment below to the same purport is just, and contrary to the allegations in the grounds of appeal, there are no errors in the misapprehension of legal principles as to the principle of an indictment only, violation of due process under Article 12(1) of the Constitution, Article 254(1) of the Criminal Procedure Act and Article 61

2. As to the assertion that a request for summary order is unlawful

This part of the assertion is that only was made in the trial and does not constitute a legitimate ground of appeal. In addition, even if the record is examined, the crime subject to a request for the summary order of this case is a violation of the Punishment of Violences, etc. Act (at night and joint injury) and the applicable provisions of this case can be subject to summary order as provided by Article 2(2) and (1) of the Punishment of Violences, etc. Act and Article 257(1) of the Criminal Act. Thus, this part of the ground of appeal cannot be accepted.

3. As to the assertion that the photograph taken by the Nonindicted Party on the part of the injury of the Nonindicted Party is inadmissible

A. Article 55(1) of the Criminal Procedure Act provides Defendant with an opportunity to inspect or copy the protocol of trial through the inspection or copy of the protocol of trial to ensure accuracy of the protocol and to ensure Defendant’s right to defend himself/herself (see Supreme Court Decision 2003Do3282, Oct. 10, 2003). Thus, even if Defendant did not peruse or copy the protocol of trial at the time prior to the date of the next hearing, it cannot be deemed that Defendant’s right to request perusal or copy of the protocol of trial under Article 55(1) of the Criminal Procedure Act was infringed due to delayed perusal or copy of the protocol of trial unless there are special circumstances, such as where Defendant did not peruse or copy the protocol of trial prior to the date of the closing of hearing, and thus, it cannot be deemed that Defendant’s right to request perusal or copy of the protocol of trial under Article 55(1) of the Criminal Procedure Act was infringed.

According to the records, the defendant inspected and copied the protocol of the first trial on October 19, 2004, which was held on April 18, 2005, which was held on October 19, 2004, and the first instance court notified the defendant of major points of the first trial on the second trial date on December 16, 2004 by the protocol of the first trial date, and concluded the pleading on December 8, 2005. Thus, if the circumstance is that, even if the defendant requested to peruse and copy the protocol of the second trial on December 13, 2004, even if it was impossible to peruse and copy it, it cannot be seen that there was any obstacle to the defendant's exercise of right to defense, and therefore, the first instance court's evidence cannot be used as evidence to be used as evidence for conviction, and therefore, the allegation in the grounds of appeal against the defendant's guilt cannot be used as evidence as evidence under the premise that it cannot be used as evidence for examination of evidence.

B. Even if an investigative agency erred in the procedure of arresting the Defendant in the act of committing an offense, etc., as alleged in the grounds of appeal, “the photograph taken by the Nonindicted Party’s body of injury” cannot be deemed as evidence collected by the Defendant since it is not evidence collected from the Defendant. This part of the grounds of appeal is without merit.

C. As the hearsay rule is not applied as non-statement evidence, the argument in the grounds of appeal to the effect that the hearsay rule should be applied on the premise that the above photograph is a statement evidence cannot be accepted.

D. Although the declaration of consent to evidence under Article 318 of the Criminal Procedure Act may be revoked or withdrawn before the examination of evidence is completed, the admissibility of evidence already acquired prior to the revocation or withdrawal is not lost since the cancellation or withdrawal is not recognized after the examination of evidence is completed (see Supreme Court Decision 2004Do2611, Jun. 25, 2004). According to the records, the defendant consented to the examination of the above photograph as evidence on the first trial date of the first instance court, and accordingly, the first instance court completed the examination of evidence on the above photograph. As such, contrary to the allegations in the grounds of appeal, the defendant revoked or withdrawn the declaration of consent to evidence on the above photograph and thus, the admissibility of the above photograph is not lost. The allegation in the grounds of appeal in this part also has no merit.

E. Therefore, the court below is just in finding the admissibility of evidence of “the photograph taken by the Nonindicted Party’s body of injury,” and there is no violation of Articles 55(3), 307, 310-2, 312(1), and 318(1) of the Criminal Procedure Act, Article 12(1) of the Constitution, Article 61 of the Rules on the Prosecution Affairs, contrary to what is alleged in the grounds of appeal.

4. As to the allegation that the defendant did not inflict any injury on the non-indicted person

Examining the evidence duly admitted and examined by the court of first instance as cited by the court below in the record, the court below is just in finding the defendant guilty of the facts charged in this case that the defendant was injured on the treatment days and flag on the victim's flab and flab on the victim's flab, and there is no illegality in violation of the rules of evidence, contrary to the allegations in the grounds of appeal.

5. Conclusion

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

Justices Lee Hong-hoon (Presiding Justice)