Whether the withdrawn facts charged are the transitional facts of other facts constituting the crime and is in violation of the principle of no accusation.

If a prosecutor withdraws a specific facts charged from among the facts charged as a separate crime and then withdraws it, the withdrawn facts cannot be viewed as the content of other facts charged or the transitional fact, unless there is a clear statement that the withdrawn facts will include the crimes among other facts charged.

Article 298 of the Criminal Procedure Act

Supreme Court Decision 68Do754 Decided July 30, 1968

Defendant

Defendant

Attorneys Kim Jin-kin et al.

Seoul High Court Decision 85No1339 delivered on August 1, 1985

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Principle of no complaint;

According to the records, a prosecutor prosecuted the original criminal facts of the defendant on 64 facts charged, and applied for changes in indictment as of March 16, 1985, 36 paragraphs (8), (10), (11), (12), (13), (14), (15), (16), (18), (20), (21), (22), (2), (25), (25), (27 (Jointity), (28 (Jointity), (28 (Jointity), (4), (4), (4), (4), (3), (4), (4), (4), (4), (4), (2), (4), (4), (4), (4), (2), (4), (4), (4), (2), (5), (2), (4), (4), (4), (4), (2), (4), (4), (4), (4), (2), (4), (2), (4), (4), (4), (2), (4), (4), (4), (2), (2), (4), (2), (4), (2), and (4) (4), (2), and (4),

However, the first instance judgment

1.A meeting in the facts listed in paragraph 8 above-mentioned in the facts set out in that facts charged in paragraph 8 of the facts stated in that ruling shall be expressed as follows after deducting only the term;

2.The words "contributing" in paragraph 9 of that ruling shall be expressed as they are, after deducting only the words "contributing" and "contributing" from the facts stated in paragraphs 15 and 16

(c)enciate all the terms obtained by deducting only meetings from among the facts described in paragraphs 21 to 30 and 32 above withdrawn from the potential entry under paragraph 11 of the ruling, as they are, and

4. Of the facts charged in the indictments No. 14 (14) and (36) that were withdrawn by the former part of the facts constituting the crime, all indicated as follows after deducting only the part “the detection and collection of national secrets to achieve its objective from the members of an anti-government organization.”

5. The facts stated in paragraphs 51 and 52 above, as stated in the holding, shall be stated, after deducting words in the meetings and money and valuables received, as they are, from among the facts withdrawn from the above facts.

6. The facts stated in paragraphs 62 and 63 of the ruling at issue, which are all obtained by deducting words of escape, meeting, and money and valuables received from the facts set forth in paragraphs 62 and 63 of the above withdrawal.

The court below rejected the grounds for appeal on the ground that the court below's decision on the grounds of appeal, which is a violation of the principle of non-competence, is that the prosecutor did not prosecute the part of the original facts charged as separate facts constituting a crime, and it is clear that the first instance court revoked the public prosecution and rendered a decision to dismiss the public prosecution against this part of the facts charged, but even if the court of first instance recognized part of the revoked facts as the old facts or transitional facts, it cannot be viewed as an object of the trial even if the court of first instance recognized it as the old facts or transitional facts.

Unless the prosecutor has clearly stated that a certain facts charged are not prosecuted as a separate crime, and if the prosecutor withdraws it, the withdrawn facts shall return to the beginning that there is no prosecution from among the facts charged that it has not been withdrawn, and thus, it cannot be the object of the trial. In addition, the first instance court made a decision of dismissing the prosecution as to the facts charged that has been withdrawn, which cannot be the object of the trial. Accordingly, it is clear that the withdrawn facts may not be considered as the age or transitional fact of other locked crimes, and according to the ruling, it is obvious that the part of the dismissed facts is indicated as part of the facts charged, and therefore, it cannot be exempted from the so-called original decision that there is a misunderstanding of the legal principles as to the principle of no accusation.

2. Whether the rules of evidence are violated

A. The judgment of the court of first instance maintained by the judgment of the court below recognizes the fact that the defendant met with the non-indicted who is a member of the anti-government organization from February 1, 1980 to September 1, 1981. According to the records, there is no evidence to prove the fact except the confession by the defendant at the prosecutor's office. It is not recognized that the defendant and the non-indicted have met even after the lapse of 1975 by the testimony of the witness Kim Byung-jin and the statement at the investigation agency of the Dongin admitted by the court of first instance. Thus, there is no evidence to reinforce this in addition to the confession by the defendant's prosecutor

B. The defendant's prosecutor's statement that the defendant was subject to an order in the first instance court of the court of first instance, although there is a confession of the defendant with respect to each of the items 8, 9, 11, 21, and 28 of the above judgment, the defendant's prosecutor's office statement that he was subject to an order in the court of first instance, is an unqualified processed article, and the defendant's prosecutor's office statement that he was subject to an order in the court of first instance, and that there was no evidence to know the existence of Dara in the records, and that there was no evidence to know the existence of Dara in the records, and that there was the withdrawal of 8, 12 through 16, 21 through 32, 51, 52 and 63 of the facts charged with the meeting with Dara and the receipt of money and valuables from the Republic of Korea.

C. A counter-espionage crime under Article 10, 12, 13, 15, 16, 18, 19, 22, and 28 of the same holding is deemed to be committed. A counter-espionage crime under Article 4 (1) of the National Security Act refers to an act of collecting national secrets from members of an anti-government organization or those who are subject to its order to achieve their intended purpose. As to the fact that the defendant was subject to an order from Marara who is a member of an anti-government organization, it is doubtful that he was credibility of his confession as seen above, and as to the fact that he was inserted in a book on the date, time, place, number of participants, details of relief, police guard, etc. of an anti-government demonstration by a student, it is not possible to find such entry in the book three, which is seized, and therefore, it cannot be found that there is no evidence other than the prosecutor's statement by the defendant.

3. Conclusion

As seen above, the judgment of the court of first instance cannot be deemed to be unlawful, which has misunderstanding the legal principles as to the principle of no accusation, or maintained the judgment of the court of first instance which has established facts in violation of the rules of evidence, and since it is obvious that the judgment of the court of first instance affected the result of the judgment, the theory of lawsuit on this issue

Therefore, the judgment of the court below is reversed and remanded, and it is so decided as per Disposition with the assent of all Justices involved.

Justices Lee Chang-chul (Presiding Justice) No. 300, 2000, No. 3000,000,000,000,000