Whether the same legal principle applies to cases where the statute of limitations has already been completed at the time of prosecution based on the statutory penalty for the charges changed by the procedures for modification of indictment (i.e., a judgment in a retrial) and the statutory penalty for the facts that the court may recognize without changing indictments (affirmative)

Articles 249, 298, and 326 subparag. 3 of the Criminal Procedure Act

Supreme Court Decision 2001Do2902 Delivered on August 24, 2001 (Gong2001Ha, 2146) Supreme Court Decision 2002Do2939 Delivered on October 11, 2002 (Gong2002Ha, 2778)

Defendant

Defendant and the respondent for attachment order

Attorney Kim Young-young

Busan High Court Decision 2013No40, 2013No4 decided May 3, 2013

Of the judgment of the court below, the part concerning the crime No. 1 of the judgment of the court of first instance and the part concerning the claim for attachment order shall be reversed, and this part of the case shall be remanded to Busan High Court. The remaining

The grounds of appeal are examined.

1. Part of the defendant's case

A. As to the crime No. 1 of the first instance judgment

In a case where there is a difference in the statutory penalty due to changes in the facts charged by the amendment of indictment procedures, it shall be deemed that the statutory penalty for the changed facts charged is the basis for the statute of limitations. As such, if the statutory penalty for the facts charged at the time of prosecution has not yet expired at the time of prosecution based on the statutory penalty for the changed facts charged, a judgment of acquittal shall be rendered on the ground that the statute of limitations has expired (see, e.g., Supreme Court Decision 2001Do2902, Aug. 24, 2001). This legal principle likewise applies to cases where the statute of limitations has already expired at the time of prosecution, based on the statutory penalty for the facts that the court may recognize without changing

Of the facts charged in this case, the statute of limitations has expired after the lapse of seven years from the date of termination of the crime (Article 249 (1) 3 of the former Criminal Procedure Act (amended by Act No. 8730 of Dec. 21, 2007) since the statutory penalty for the crime of rape was imprisonment with prison labor for at least three years, and the statute of limitations has expired (Article 249 (1) 3 of the former Criminal Procedure Act). According to the records, the prosecution in this case was filed on August 30, 2012 against the defendant and the person against whom the attachment order was requested (hereinafter referred to as the "defendant") who committed rape after the lapse of seven years from September 10, 204 from the date when the crime of rape was completed. Thus, it is reasonable to deem that the statute of limitations has already expired for the crime of rape at the time of the prosecution in this case, unless there are special circumstances, such as the suspension

Nevertheless, the court below did not make any decision on the completion of the statute of limitations and found the Defendant guilty of this part of the facts charged. In so doing, the court below erred by misapprehending the legal principles on the statute of limitations, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

B. As to each crime of Article 2 of the Judgment of the first instance

According to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed, an appeal on the ground of unfair sentencing is allowed. Thus, in this case where a minor sentence has been imposed on each of the crimes in this part, the defendant's assertion that the amount of punishment

2. Part on the case of request for attachment order

Article 9(8) of the former Act on the Electronic Monitoring, etc. of Specific Criminal Offenders (amended by Act No. 11558, Dec. 18, 2012; hereinafter “Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders”) provides that when an appeal is filed against the judgment on a specific criminal case, such as a sexual crime, the judgment on the request for attachment order shall also be deemed to have been appealed. Paragraph (4) 2 of the same Article provides that the request for attachment order shall be dismissed by a judgment in a case where the case is acquitted, acquitted, or dismissed. As such, Article 9(4)2 of the same Act provides that the judgment on the request for attachment order shall be dismissed by a judgment on the grounds that the illegality of the part at issue in subparagraph 1-A of the Defendant case is a ground for attachment order (see, e.g., Supreme Court Decision 2010Do5610, Oct. 14, 2010).

3. Conclusion

Therefore, among the judgment of the court below, the part on the crime No. 1 of the judgment of the court of first instance and the part on the case on the attachment order claim are all reversed, and this part of the case is remanded to the court below for a new trial and determination, and the remaining appeal by the defendant is dismissed. It is so decided as per Disposition by

Justices Lee In-bok (Presiding Justice)