Whether it is necessary to change the date and time of the crime and changes in indictment among the facts charged.

Articles 254(4) and 298 of the Criminal Procedure Act

Supreme Court Decision 2013Do9515 Decided December 12, 2013 Supreme Court Decision 2016Do17679 Decided January 25, 2017

Defendant

Defendant

Attorney Kang Han-hun et al.

Suwon District Court Decision 2018No3062 decided October 23, 2018

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

The grounds of appeal are examined.

1. (a) Where a ground for a request for a retrial exists, such ground may be the ground for appeal against the lower judgment (Articles 383 subparag. 3 and 420 subparag. 5 of the Criminal Procedure Act).

B. The record reveals the following facts.

1) The summary of the facts charged in the instant case is that the Defendant committed an indecent act by force with the victim’s chest rhythm that was parked in the church parking lot that was parked in the military police around early September 2013. The Defendant asserted that there was no indecent act with the investigative agency. The Defendant asserted that there was no fact that the Defendant committed an indecent act with the investigative agency.

The first instance court rendered a judgment not guilty of the facts charged on the ground that it is difficult to recognize that the Defendant committed an indecent act against the victim on the ground of “an indecent act against the victim’s resistance,” but it committed an indecent act on the ground that it is difficult to recognize that the Defendant committed an indecent act by “an indecent act against the victim’s resistance or intimidation to the extent that it would make it difficult to resist the victim’s resistance,” or by “the victim

2) In addition, the prosecutor appealed, and filed an application for permission to amend the Bill of Indictment with the content that added the ancillary facts charged at the lower court. The summary of the additional facts charged is that the Defendant committed an indecent act with the victim’s chests by rhythizing the victim’s chests beyond the scope of the safe-water season, and rhythizing the victim’s chests. The Defendant asserted that there was no indecent act on the ancillary facts.

The court below ordered the defendant to amend the bill of indictment on the first trial date, closed arguments on the same day, and reversed the judgment of the court of first instance due to the changes in the scope of the trial, while maintaining the conclusion of innocence of the court of first instance as to the primary facts charged, and sentenced the defendant to six months of imprisonment and forty hours of order to complete the program.

3) In the final appeal, the Defendant newly appointed a private defense counsel at the court of final appeal, and the defense counsel left the appellate brief on July 5, 2013 and submitted the above documents to the Supreme Court with the “certification of entry and departure” attached to the effect that the Defendant entered the Republic of Korea on October 1, 2013, and the Defendant asserts that he is not guilty.

2. Examining these facts in light of these facts, there is room to view that the Defendant was absent from the Republic of Korea on the beginning of September 2013, and in such a case, the conjunctive facts charged that the Defendant committed an indecent act against the victim by fraudulent means cannot be established at that time, so it is difficult to maintain the judgment below as it is. The allegation contained in the grounds of appeal

For the foregoing reasons, the part of the lower judgment’s ancillary charges should be reversed. As long as the part of the ancillary charges is reversed, the lower judgment, including the primary charges, should be reversed in its entirety.

On the other hand, the date and time of the crime are not for the specification of the facts charged, and it does not require the procedures for Amendments to Bill of Indictment because the date and time are somewhat different. However, if the time of the crime is long and there is a serious relation as to the recognition of the crime, it may bring about substantial disadvantages to the defendant's defense (see, e.g., Supreme Court Decision 2016Do17679, Jan. 25, 2017). After remanding the case, the lower court needs to deliberate and decide on the amendment to Bill of Indictment in consideration of the above legal doctrine.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)