[1] Whether the indictment can be modified to other facts charged at the first instance court or the appellate court within the scope consistent with the original facts charged, even if the complaint is revoked after the complaint was prosecuted due to a crime subject to victim's complaint (affirmative), and whether the same legal principle applies to the crime of non-compliance with the indictment (affirmative)

[2] The case holding that even after the victim expressed his intention not to impose punishment in the first instance trial, the appellate court can modify the indictment from assault to bodily injury, and in this case, it is justifiable to find the appellate court guilty by hearing and judging the injury as the modified charge

[1] Articles 232, 298, and 327 subparag. 5 and 6 of the Criminal Procedure Act / [2] Article 257(1) of the Criminal Act; Articles 232, 254(3), 298, and 327 subparag. 6 of the Criminal Procedure Act

[1] Supreme Court Decision 89Do1317 delivered on January 25, 1990 (Gong1990, 591)

Defendant

Defendant

Incheon District Court Decision 2010No2238, 2709, 3091 Decided February 8, 2011

The appeal is dismissed.

The grounds of appeal are examined.

In a case where a victim’s complaint in an offense subject to victim’s complaint was filed or a victim’s complaint was revoked, and an offense subject to victim’s complaint was filed, which is recognized as identical to the original offense subject to victim’s complaint, the defect in the indictment is cured (see Supreme Court Decision 96Do2151, Sept. 24, 1996, etc.). Even if the victim’s complaint is revoked after the victim’s complaint was prosecuted as an offense subject to victim’s complaint, the amendment of the indictment can be made to other facts subject to victim’s complaint within the scope that is identical to the original offense subject to victim’s complaint at the first instance court or the appellate court, and in such a case, the changed facts subject to victim’s complaint should be deliberated and determined (see Supreme Court Decision 89Do1317, Jan. 25, 190, etc.). The same should apply to cases where “a victim’s wish not to punish”

According to the records, among the facts charged in this case, the facts charged in this case include the name of the crime in the initial indictment and the applicable provisions in the indictment were stated as Article 257 (1) of the Criminal Act, but the facts charged were stated as assault. The court of first instance declared that the above victim did not wish to punish the defendant, but the court of first instance rendered a conviction by using the applicable provisions in the indictment and the facts charged as they are, and then the prosecutor filed an application for the modification of indictment with the contents that the defendant changed the above facts charged into the injury, and after which the court below permitted it, it can be seen that the court below deliberated and judged the changed facts.

Although the victim expressed his/her wish not to punish at the court of first instance, it is just in accordance with the above legal principles that the court below deliberated and judged the injury, which is the changed facts charged, and it is not erroneous in the misapprehension of legal principles as to Article 327 subparagraph 6 of the Criminal Procedure Act. The allegation in the grounds of appeal on this part is without merit.

On the other hand, in this case where a fine is imposed against the defendant, the argument of unfair sentencing cannot be a legitimate ground for appeal.

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

Justices Cha Han-sung (Presiding Justice)