In cases where the applicable provisions of Acts stated in the indictment are clerical errors or omissions, or the elements constituting applicable provisions of Acts are not satisfied, whether the court, ex officio without going through the procedures for modification of indictment, may apply other provisions of Acts (affirmative with qualification) / Where the applicable provisions of Acts stated in the indictment cannot be deemed as simple clerical errors or omissions, and the elements of indictment are satisfied, whether the court may arbitrarily apply other provisions of Acts without going through the procedures for modification of indictment (negative)

In the indictment, the applicable provisions of Acts shall be stated in order to assist the determination of the scope of the public prosecution by clarifying the legal evaluation of the facts charged (Article 254(3) of the Criminal Procedure Act), and in the case where there are errors or omissions in the entry of applicable provisions of Acts, or where the elements constituting applicable provisions of Acts are not satisfied, the court may apply other provisions of the indictment ex officio without going through the procedures for modification of the indictment to the extent that it does not substantially disadvantage the defendant's defense, and as long as the applicable provisions of Acts stated in the indictment cannot be deemed as simple errors or omissions, and even if the elements of the indictment are satisfied, the court shall not arbitrarily apply other provisions of Acts without going through the procedures for modification of indictment.

Articles 254(3) and 298 of the Criminal Procedure Act

Supreme Court Decision 96Do1232 delivered on June 28, 1996 (Gong1996Ha, 2443) Supreme Court Decision 2005Do9743 Delivered on April 14, 2006 (Gong2006Sang, 842)

Defendant

Defendant and Prosecutor

Law Firm Hayn, Attorneys Lee E-young

Busan District Court Decision 2014No3398, 2015No121, 1144 decided July 16, 2015

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

1. Judgment on the grounds of appeal by the prosecutor

A. The court below convicted the Defendant of the violation of Article 2(1)3 of the Punishment of Violences, etc. Act and Article 350 of the Criminal Act (hereinafter collectively referred to as "the above two provisions") with regard to habitual intimidation among the facts charged in the instant case. However, without any special aggravated description of the elements of a crime, the provisions of this case are the same as the crime of habitual assault under Articles 351 and 350 of the Criminal Act without any special aggravated description, and the provisions of this case are the same as the crime of habitual assault under Articles 351 and 350 of the Criminal Act. The above statutory punishment can be imposed in violation of the principle of equality in the contents of the Act, as well as in violation of the basic principles of the Constitution guaranteeing human dignity and value by lowering the statutory punishment system's legitimacy and balance. The court below found the Defendant guilty of the violation of the Punishment of Violences Act (Habitual assault Act) under the Criminal Act, on the grounds that ex officio application of the applicable provisions of law without being bound to the extent consistent with the facts charged.

B. However, the lower court’s determination is difficult to accept for the following reasons.

In the indictment, the applicable provisions of law shall be stated in order to assist the scope of the indictment by clarifying the legal evaluation of the facts charged (Article 254(3) of the Criminal Procedure Act), and in the case where there is any clerical error or omission in the entry of applicable provisions of law, or the elements constituting applicable provisions of law are not satisfied, it may be applied by the court ex officio without going through the procedures for modification of the indictment to the extent that it does not substantially disadvantage the defendant's defense (see, e.g., Supreme Court Decisions 96Do1232, Jun. 28, 1996; 2005Do9743, Apr. 14, 2006; 2005Do9743, Apr. 14, 2006). Although the applicable provisions of law as stated in the indictment cannot be considered as simple clerical error or omission, and even if the elements of the indictment are satisfied, other provisions of law may not be applied arbitrarily without going through the procedures for modification. This case and this case is inappropriate.

Furthermore, “Habitual” as referred to in Article 2(1) of the Punishment of Violences Act does not mean only the habitualness between the crimes listed in each subparagraph of the same paragraph, but it shall be interpreted that it means the habit of violence that covers all the crimes listed in each subparagraph of the same paragraph (see, e.g., Supreme Court Decision 2008Do3657, Aug. 21, 2008). On the other hand, “Habitual” as referred to in Articles 351 and 350 of the Criminal Act refers to the nature of an offender as a habit of repeated attack (see, e.g., Supreme Court Decision 2005Do574, Oct. 28, 2005). Thus, the provisions of this case have different elements of a crime under Articles 351 and 350 of the Criminal Act, and thus, are contrary to the principle of equality and punishment under the premise that they are unconstitutional.

Therefore, the court below, based on its stated reasoning, omitted the judgment on the measures to be applied ex officio by the crime of habitual assault under the Criminal Act, which is not a violation of the Punishment of Violences Act (Habitual Violence) stated in the indictment without going through the procedures for modification of the indictment, or violates the principle of no accusation, or misunderstanding the legal principles on adjudication of unconstitutionality, thereby adversely affecting the conclusion of the judgment. The prosecutor's ground of appeal pointing

2. Ex officio determination

The lower court upheld the first instance judgment that convicted the Defendant by applying Articles 3(1), 2(1)1, and 260(1) of the Punishment of Violences Act to the charge of assaulting carrying dangerous articles among the facts charged in the instant case.

However, the Constitutional Court rendered a decision of unconstitutionality on the part of Article 3(1) of the Punishment of Violences Act regarding “a person who commits a crime under Article 260(1) of the Criminal Act by carrying a deadly weapon or other dangerous object with a deadly weapon or other dangerous object” (see, e.g., Constitutional Court Order 2014HunBa154, Sept. 24, 2015). The provision of the Act retroactively loses its effect pursuant to the main sentence of Article 47(3) of the Constitutional Court Act.

In a case where the penal law or the legal provision becomes retroactively null and void due to the decision of unconstitutionality, the defendant's case prosecuted by applying the pertinent provision is not a crime, and the judgment of the court below which found the guilty of this part of the facts charged was no longer maintained.

3. Scope of reversal

Among the judgment of the court below, each part of the judgment of the court below as to habitual conflict and the violation of the Punishment of Violences Act (a group, deadly weapon, etc.) should be reversed. Since each of the above and the remaining crimes of the defendant are concurrent crimes under the former part of Article 37 of the Criminal Act, the judgment below should be reversed in its entirety.

4. Conclusion

The judgment of the court below is reversed without examining the Defendant’s grounds of appeal, and the case is remanded to the court below 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 Lee In-bok (Presiding Justice)