[1] In a case where a defendant, other than a defense counsel, fails to serve a notice of changes in indictment or a copy of an application for changes in indictment, whether the measure is unlawful (negative)

[2] The case holding that the argument that the name of the crime before the change is deleted and only the name of the recognized crime is written is not a ground for appeal, since the name of the crime before the change is still stated in the case name of the written judgment even though the amendment was made

[1] When there is a change in indictment as provided in Article 298(3) of the Criminal Procedure Act, the notice of the reason and the service of a copy of the application for modification of indictment as provided in Article 142(3) of the Rules on Criminal Procedure are possible to be made by the defendant or his defense counsel. Thus, there is no illegality in the court below's measures which did not serve the defendant with a notice of the reason or a copy of the application.

[2] The case holding that the argument that the name of the crime before the change is deleted and only the name of the recognized crime is written is not a ground for appeal, since the name of the crime before the change is still stated in the case name of the written judgment even though the amendment was made.

[1] Article 298(3) of the Criminal Procedure Act, Article 142(3) of the Regulation on Criminal Procedure / [2] Articles 298 and 383 of the Criminal Procedure Act

[1] Supreme Court Decision 85Do1193 delivered on August 13, 1985 (Gong1985, 1275)

Defendant

Defendant

Supreme Court Decision 2000Do2440 Delivered on September 26, 2000

Daejeon High Court Decision 2000No541 delivered on February 2, 2001

The appeal is dismissed.

The grounds of appeal are examined.

1. Examining the evidence specified in the reasoning of the judgment below and the judgment of the court of first instance as cited by the court below in light of the records, there is no error of law such as misconception of facts or incomplete hearing due to a violation of the rules of evidence, as otherwise alleged in the ground of appeal by the court below that

2. In case of changes in indictment under Article 298(3) of the Criminal Procedure Act, notice of the reasons therefor or service of a copy of the application for changes in indictment under Article 142(3) of the Rules on Criminal Procedure is possible to the defendant or his defense counsel. Thus, there is no illegality in the court below's measure that did not serve the defendant with notice of the above reasons or a copy of the application (see Supreme Court Decision 85Do1193, Aug. 13, 1985). According to the records, the court below's decision after remanding the case to the prosecutor after requesting the changes in indictment and remand the case from the third day of the court below to the violation of the Punishment of Violence, etc. Act from the injury resulting from rape of the original charges and applicable provisions to the judgment after closing pleadings. In light of the progress of the trial since the first instance court as stated in the records and the defendant's assertion and evidence, it cannot be viewed that the above changes in indictment do not result in a substantial disadvantage to the defendant's defense right.

3. In this case where the case name prior to the amendment of the indictment is still stated in the case name of the written judgment even though the amendment was made, and the defendant is still likely to suffer a substantial disadvantage, and thus the defendant is declared to delete the name of the crime prior to the amendment and only the recognized name of the crime is stated, or where a fine is imposed, the argument that the amount of the punishment is too inappropriate is all deemed as a ground for appeal under

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

Justices Cho Cho-Un (Presiding Justice)