In a case where the indictment on which the prosecutor’s name and seal or signature are omitted is submitted to the competent court, the validity of the indictment (=in principle invalid) and in this case, in a case where the prosecutor completes his name and seal or signature on the indictment, the validity of

Article 254(1) of the Criminal Procedure Act provides that “A public official shall submit a written indictment to the competent court.” Meanwhile, Article 57(1) of the Criminal Procedure Act provides that “The document to be prepared by the public official shall be the date of preparation and the public office to which he/she belongs, unless otherwise provided in the Act.” In this context, “documents prepared by the public official” includes the written indictment prepared by the public prosecutor. As such, the written indictment submitted to the competent court without the name and seal or signature of the public prosecutor is in violation of Article 57(1) of the Criminal Procedure Act. The written indictment submitted to the competent court without the name and seal or signature of the public prosecutor. In addition, barring any special circumstance, the submission of a written indictment by the submission of a written indictment without the legal form constitutes a case where the procedure is null and void (Article 327 subparag. 2 of the Criminal Procedure Act) in violation of the provisions of the Act. In this case, the indictment

Articles 57(1), 254(1), and 327 subparag. 2 of the Criminal Procedure Act

[Plaintiff-Appellant] Plaintiff 2007Do4961 decided Oct. 25, 2007 (Gong2007Ha, 1889)

Defendant

Prosecutor

Daegu District Court Decision 2010No1429 Decided November 26, 2010

The judgment below is reversed, and the case is remanded to the Daegu District Court Panel Division.

The grounds of appeal are examined ex officio prior to the examination.

1. Article 254(1) of the Criminal Procedure Act provides that “The institution of a public prosecution shall submit a written indictment to the competent court.” Meanwhile, Article 57(1) of the Criminal Procedure Act provides that “The document to be prepared by a public official shall state the date of preparation and the public office to which he/she belongs, and shall affix his/her name and seal or sign, unless otherwise provided in any other Act.” In this context, “documents to be prepared by a public official” includes the written indictment prepared by the public prosecutor. As such, the written indictment submitted to the competent court without the name and seal or signature of the public prosecutor is a document contrary to Article 57(1) of the Criminal Procedure Act. In addition, barring any special circumstance, the presentation of a public prosecution by the presentation of a written indictment without the legal form is invalid (Article 327 subparag. 2 of the Criminal Procedure Act). In this case, the indictment may become effective by the method of completing the name and seal or signature of the public prosecutor’s written indictment (see Supreme Court Decision 2007Do4961, Oct. 25, 207).

2. According to the records, the indictment submitted to the first instance court of this case is limited to the statement of "public prosecutor" in the same word at the bottom of the indictment, and the indictment does not contain the name and seal or signature of the public prosecutor required by Article 57 (1) of the Criminal Procedure Act. Nevertheless, the first instance court served the defendant with the defect of the indictment procedure and served the copy of the indictment on the date of trial, and rendered a judgment of not guilty after hearing the prosecuted case on the date of trial, and the judgment of the court below also acquitted the public prosecutor's appeal without taking measures to correct the illegality of the first instance judgment.

According to the above legal principles, the court below erred by misapprehending the legal principles on the validity of prosecution by submitting the indictment with the prosecutor’s name and seal or signature omitted, which affected the conclusion of the judgment.

3. Therefore, without examining the grounds of appeal, we reverse the judgment of the court below and remand the case to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)