Requirements for the court to recognize facts charged and facts charged different from those stated in the indictment ex officio without changes in indictment.

Articles 254 and 298 of the Criminal Procedure Act

Supreme Court Decision 96Do755 Decided May 10, 1996 (Gong1996Ha, 1952) Supreme Court Decision 2001Do1091 Decided June 29, 2001 (Gong2001Ha, 1800) Supreme Court Decision 2009Do9122 Decided July 28, 201

Defendant 1 and one other

Defendants

Attorney Jung-young et al.

Daejeon High Court Decision 2013No234 decided October 16, 2013

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. As to the grounds of appeal on the part of the indictment amendment

A. The summary of the facts charged regarding sexual crimes among the facts charged in the instant case is as follows.

(1) As to Defendant 1

(A) On November 2010, the Defendant: (a) sent to Defendant 2’s accommodation near the ○○○ located in the Jinsan-gun, Chungcheongnam-gun; (b) told Defendant 2 that the victim and Defendant 2 left the said taxi and stopped the said taxi after having opened the cab and driving away; and (c) laid the victim to Defendant 2 (vehicle number omitted); (d) sent the victim to the (vehicle number omitted); (e) knew the victim’s mental disorder that the victim has weak the ability to change things and expressed opinions; and (e) tried to commit an indecent act against the victim by using the victim’s chest and her finger in his/her hands, leaving the cab around the area of Jinsan-gun, Geumsan-gun; and (e) committed an indecent act by using the victim’s mental disorder, by taking advantage of the victim’s chest and her ability to resist.

(B) Around December 2010, the Defendant returned the victim to the said Bosch Rexton vehicle with the mind that the victim was unaware of the victim’s ability and expression ability due to mental disorder, and was parked in the factory entrance entrance of the Simnam-gun, Chungcheongnam-gu, Chungcheongnamnam-do, to commit an indecent act against the victim by using the victim’s bucks and tacks and tacks, with the intent of committing an indecent act by using the victim’s state of escape due to mental disorder.

(C) Around January 201, the Defendant: (a) in the instant Bosch Rexton vehicle parked in the factory surrounding Chungcheongnam-gun ( Address 2 omitted); (b) was aware of the mental disorder of the victim’s ability and expression ability to change things due to mental disorder; and (c) decided to have sexual intercourse with the victim using the mental disorder; (c) the victim “whether he or she is her or not he or she is her or not; and (d) he or she exceeded the clothes of the victim; and (c) had sexual intercourse once with the victim, using the victim’s condition that the victim is unable to resist due to mental disorder.

(2) As to Defendant 2

(A) In October 2010, the Defendant, along with the victim in the Geumbuk-gun ( Address 3 omitted), did not know that the victim had weak ability and expression ability to change things due to mental disorder, and had sexual intercourse with the victim by using the victim’s room in the Doldong-gun, △△△△, which was located in the Geumbuk-gun ( Address 3 omitted), and decided to have sexual intercourse with the victim by using the victim’s room, where it is impossible to know the number of the Doldong-gun, which was located in the above ( Address 3 omitted), was discharged from the clothes of the victim, and had sexual intercourse once with the victim using the condition that the victim

(B) On October 2010, the Defendant, at the Defendant’s accommodation located in Geumnam-gun ( Address 1 omitted) 277-5, told the victim to have sexual intercourse with the victim by using the victim’s mental disorder, knowing that the victim lacks the victim’s ability to discern things and ability to express his opinion due to mental disorder, and urged the victim to have sexual intercourse with the victim by using the mental disorder, and called “I would like to have two maths of the baby,” and let the victim do sexual intercourse with the victim by exceeding the clothes of the victim, and once having sexual intercourse with the victim by taking advantage of the state where the victim is unable to resist due to mental disability.

(다) 피고인은 2010년 11월경 충남 금산군 (주소 5 생략) 남경중국음식점에서 피해자가 정신장애로 인하여 사물의 변별 능력과 의사표현 능력이 미약함을 알고 이를 이용하여 피해자를 간음하기로 마음먹고 피해자에게 “강아지를 더 주겠다”라고 말하여 충남 금산군 (주소 3 생략)에 있는 ◁◁원룸으로 데려간 뒤 피해자의 옷을 벗기고 1회 간음하여 피해자가 정신상의 장애로 항거불능인 상태를 이용하여 피해자를 간음하였다.

B. In relation to each of the facts charged, the court below found the Defendants not guilty on the ground that the Defendants knew that there was a certain level of intellectual disability for the victim. However, the victim cannot be deemed to have been unable to resist due to mental disorder above the mere intellectual disability, and the Defendants cannot be deemed to have sexual intercourse or have committed an indecent act by taking advantage of the victim’s mental disorder, and thus, the crime of violation of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (rape-rape, etc. against the disabled) cannot be acknowledged. On the other hand, the court below found Defendant 1 not guilty on the ground that the victim was sexual intercourse with the victim at the time of the victim’s sexual intercourse, and exceeded the victim’s cell phone at the time of the victim’s sexual intercourse, and the victim tried to turn on his body and body and attempted to turn off from the phone and attempted to turn off the phone, and the victim was sexual intercourse with the victim at the time of having sexual intercourse with the victim or had sexual intercourse with the victim, in light of the fact that the Defendants had a mental disorder or sexual intercourse with mental disorder without mental disorder.

C. However, we cannot accept the above determination by the court below for the following reasons.

(1) In a case where a court recognizes a more minor criminal facts included in the criminal facts charged within the scope consistent with the facts charged, where it is deemed that there is no concern about causing substantial disadvantage to the defendant's exercise of his/her right to defense in light of the progress of the trial, the court may, ex officio, recognize the facts charged different from the facts charged as stated in the indictment, even if the indictment has not been modified. However, if it does not so, it is not possible to recognize the facts charged differently from the facts charged as stated in the indictment without the prosecutor's modification of the indictment (see, e.g., Supreme Court Decisions 96Do755, May 10, 1996; 201Do1091, Jun.

(2) Examining the reasoning of the lower judgment in light of the record, the lower court acknowledged a new fact that is not included in the facts charged in this part. However, the act of sexual intercourse or indecent act against a person with mental disability who has been recognized by the lower court due to mental disorder, and sexual intercourse or indecent act by force against a person with mental disability recognized by the lower court, should be different from the object of the act, the other party’s condition, contents and method of the act, and accordingly, the corresponding Defendants’ content, means, etc. of defense in litigation

In light of the fact that the facts charged by the court below as stated in the facts charged are not stated in the facts charged, and it is clear that the criminal act as stated in the facts charged, the objects of the act, the situation of the other party, and the contents and method of the act, even if certain degree of trial is conducted in the trial proceedings, it is necessary to change the indictment and thus the defendant is expected not to recognize any other facts without a change in the indictment, and it is likely that the court will not recognize any other facts without a change in the indictment, and that there is a possibility that the defendant would lose an opportunity to submit legal arguments and evidential materials corresponding to the facts, etc. corresponding to the "sexual intercourse and indecent act against a person with a mental disability by force" recognized by the court below, it cannot be said that a sufficient

(3) Therefore, although the court below should have gone through the process of amendment of indictment on the part of the above facts recognized as having been conducted, the court below acknowledged the above facts constituting an offense as stated above without the procedure. Such judgment of the court below is erroneous in the misapprehension of legal principles as to the subject of the trial and determination or the modification of indictment, which affected the conclusion of the

2. As to Defendant 2’s fraud

A. Examining the evidence duly adopted in light of the relevant legal principles, the lower court was justifiable to have found Defendant 2 guilty of this part of the facts charged on the grounds stated in its reasoning. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on deception or recognizing facts in violation of logical and empirical rules.

B. Meanwhile, as seen earlier, the part of the lower judgment regarding sexual crimes against Defendant 2 should be reversed. However, the lower court imposed this part on the above Defendant as concurrent crimes under the former part of Article 37 of the Criminal Act and sentenced the said Defendant to a single punishment. As such, the lower court’s judgment against Defendant 2 should be reversed in its entirety.

3. Conclusion

Therefore, without examining the remaining grounds of appeal by the Defendants, the lower judgment is entirely 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 Kim Chang-suk (Presiding Justice)