(영문) 부산지방법원 2008.7.24.선고 2008노560 판결

The prosecutor prosecuted the defendant on April 30, 2007 against the crime of running a singing practice room business without registration on April 30, 2007 (the case number Busan District Court 2007DaMa5803, April 11, 2007, and April 14, 2007) to the above court on April 30, 2007 (the case number Busan District Court 2007DaMa3937, April 30, 2007). The prosecutor prosecuted the above court on April 30, 207 as to the crime of running a singing practice room business with no registration from April 30, 207 to August 23, 2007 (the case number Busan District Court 2008DaMa33434, June 34, 2007). Thus, the court below erred in the misapprehension of legal principles as to the above two-day additional crimes and dismissed the prosecution by misunderstanding it as a single comprehensive three-day judgment.

2. Summary of the facts charged and the judgment of the court below

A. Summary of the facts charged

(1) Summary of the facts charged in Busan District Court 2007 High Court Decision 3937

The Defendant did not register a singing practice room business with the competent authority, and run a singing practice room business in the said singing practice room from April 30, 2007 to August 23 of the same year.

(2) Summary of the facts charged in Busan District Court 2008 High Court 334

On April 11, 2007, the Defendant did not register a singing practice room business with the competent authority, operated a singing practice room business in the said singing practice room on or around April 11, 2007, and operated a singing practice room business in the said singing practice room around April 14, 2007.

B. The judgment of the court below

As to the above facts charged, the lower court rendered a judgment dismissing the prosecution for the following reasons.

According to the records, even after the registration of the above singing practice room was revoked on September 24, 2006, the defendant continued to run a singing practice room business in the same trade name using the same facility at the same place, and was discovered several times. On April 30, 2007, this court was indicted on April 30, 2007 and approximately 18526 of this court, and issued a summary order on June 14, 2007, respectively, under the court's 2007 High Court's 2007 High Court's 5803, 2007 High Court's 5803, 3937, 2007 fixed 33344 of the fixed 208.

In full view of the Defendant’s place of business, appearance, etc. revealed in the above facts charged against the Defendant, i.e., each of the above facts charged against the Defendant, i.e., the facts charged as charged by this court 2007Da3937, 2008 fixed 3344, is a series of business activities conducted at the same place as stated in the facts charged as stated in paragraph (2) of the judgment of the court below and the criminal intent of a single and continuous criminal suspect, and all of the facts charged for running a singing practice without registering a singing practice room business to the competent authorities in violation of Articles 34(3)1 and 18(1) of the Music Industry Promotion Act, it is reasonable to view that each of the facts charged constitute one crime by combining

Thus, the public prosecution against this Court 2007 High Court 3937, 2008 High Court 334 is a case where a new public prosecution is instituted against this Court 2007 High Court 2007 High Court 18515 (this Court 2007 High Court 2007 High Court 5803, and 2) and thus, the public prosecution against each of the above facts charged is dismissed.

3. The judgment of this Court

(a) Facts of recognition;

According to the records, on September 24, 2006, the defendant continued to engage in singing practice business with the same trade name using the same facility even after the registration of the singing practice room was revoked, and on April 30, 2007, the defendant was discovered several times, and on April 30, 2007, this court No. 2007 High Court No. 18515 (hereinafter referred to as the "No. 1 case") and this court No. 18526 (hereinafter referred to as the "No. 2 case"), and on June 14, 2007, the court below issued a summary order on 307 High Court No. 26790 (hereinafter referred to as the "No. 3 case"), and the defendant's appeal No. 2007 High Court No. 5803, 2007 High Court No. 3937, 207 High Court Decision No. 200831, Dec. 31, 2007.

(b) Scope of the effect of institution of public prosecution for secondary cases;

In full view of the defendant's place of business, appearance, etc. revealed in the above facts of recognition, each of the above facts charged against the defendant constitutes a single comprehensive crime. Thus, the prosecution of the second case, which was instituted first, leads to the facts charged in the remaining cases.

(c) In cases of additional indictment for a single comprehensive crime, the scope that can be tried without the procedures for modifying the indictment;

(1) Legal principles

In a case where it is found that the facts charged before and after the trial process, including all the charges charged, constitute a violation of the Act on the Aggravated Punishment, etc. of Specific Larceny, a habitual special thief (the Act on the Aggravated Punishment, etc. of Specific thief (the Act on the Aggravated Punishment, etc. of Specific thief), which are simple crimes, the prosecutor, as a general rule, shall change the whole facts charged in the facts charged in the case charged first, and make an application for change of the crimes and the applicable provisions of the Act in line with the above provisions of the Criminal Procedure Act, and the revocation of the indictment for the case additionally prosecuted, shall be deemed as a faithful treatment under the provisions of the Criminal Procedure Act. However, it can be deemed that the purport of the application for punishment of all the facts charged before and after the above additional indictment is included in a single comprehensive crime, and there is no difference in the substance of the indictment, and thus, the submission of an additional indictment by the prosecutor’s name of the first offense constitutes a single comprehensive crime, and there is no need for an additional prosecution to be made an amendment to the purport of the entire indictment.

(see, e.g., Supreme Court Decision 96Do1698, Oct. 11, 1996). Moreover, it is reasonable to view that such a legal principle applies in principle to a business criminal, which is a single comprehensive crime.

(2) Determination

In the light of the above legal principles, if the prosecutor indictments the second case which is a single comprehensive crime, and then the arguments for each case are combined, the prosecutor's indictments for the second case shall be changed to include the first and third cases, and the cancellation of the prosecutions for the first and third cases shall be made in accordance with the above legal principles. As alleged by the prosecutor, it shall be deemed that the prosecutions for the first and third cases shall be additionally prosecuted, and it shall not be deemed that the prosecutions for the first and third cases shall be made as a single judgment, or that the indictments shall not be changed by itself because the arguments are combined, or that it shall not be deemed that there has been a change in the indictments. The court below ordered the prosecutor to clarify whether the indictments are modified and the indictments are revoked in accordance with the legal principles as seen earlier, but only stated that the prosecutor will arrange the facts charged in the appellate trial.

As long as no opinion is disclosed, the lower court does not have any choice but no longer have any way to decide on the facts charged in the above indictment. In full view of the fact that there is no procedural error in the lower court’s dismissal of a prosecution against each of the above facts charged in double indictment, it is difficult to accept the prosecutor’s argument that the additional indictment should have been judged on the facts charged in the indictment dismissed in question, on the ground that all of the facts charged are deemed a single comprehensive crime and has different intention to punish

D. Sub-committee

Therefore, the court below's dismissal of the prosecution of this case is just, and it cannot be deemed that there is an error of law that affected the conclusion of the judgment by misunderstanding the legal principles on additional indictments and changes in indictments as pointed out by the prosecutor in the judgment of the court below, and the prosecutor

4. Conclusion

Therefore, the prosecutor's appeal of this case is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act as it is without merit. It is so decided as per Disposition.