Where a case was forwarded to the prosecutor according to a judge's order to forward the case referred to the summary trial proceedings, the court's assistance where the prosecutor forwards only the case records to the

In case where the case was referred to the summary trial proceedings and the prosecutor sent the case records to the prosecutor according to the judge's order to forward them to the court as they are, the prosecutor does not prepare a written indictment pursuant to the provisions of law and submit them to the court, and thus the prosecution procedure is null and void in violation of the provisions of law, and thus, a judgment dismissing prosecution under Article 327

Articles 254 and 327 subparagraph 2 of the Criminal Procedure Act, Article 5 of the Act on the Procedure for Summary Trials

Defendant

Prosecutor

Busan District Court (86 High Court Decision 1706 delivered on 86 High Court)

The judgment of the court below is reversed.

The prosecution of this case is dismissed.

The gist of the grounds for appeal by the prosecutor is that the case was first referred to the summary trial proceedings, and the case was forwarded to the prosecutor according to the judge's order to transfer the case, and only the prosecutor sent the case records to the court is invalid in violation of the provisions of law, and thus, the court below should have rendered a judgment of rejection of prosecution, but the judgment of the court below which acquitted the defendant, even though

However, according to the records, it can be acknowledged that the case was referred to the summary trial proceedings, and the case was sent to the prosecutor according to the judge's order to forward the case, and the prosecutor did not present only the case records to the court. Thus, since the prosecutor did not prepare and submit the indictment to the court pursuant to the provisions of law, there is a serious defect in the method of indictment (Therefore, the prosecutor seems to have instituted a oral indictment). Accordingly, since the procedure of indictment in this case was general invalid under the provisions of law, the court below should have rendered a judgment of rejection of prosecution, even though it should have judged the substantial judgment, the prosecutor's appeal is justified, which is that the defendant's appeal

Therefore, the judgment of the court below shall be reversed in accordance with Article 364(6) of the Criminal Procedure Act and the following decision shall be rendered:

The summary of the facts charged in this case is that the defendant, without being registered with the competent authorities from October 22, 1985 to February 20, 1986, 200, posted the signboard called the (title omitted) 4th floor of the building in the Dongdong-gu, Busan and the Do Office of the Association of Diplomatic Association (name omitted) 20,000 won per capita, recruited approximately 80,000 won a monthly tuition fee of KRW 100,000,000 per capita and taught a large number of artists for dancing. As stated in the reasoning of reversal, the prosecution of this case is dismissed in accordance with Article 327 subparagraph 2 of the Criminal Procedure Act, since the procedure of prosecution is invalid due to a violation of the provisions of the law.

It is so decided as per Disposition.

Judges Shin Young-ro (Presiding Judge) Gyeong-hee