[1] Where the indictment is modified, the base point of time for the completion of the statute of limitations

[2] In a case where there is a difference in the statutory penalty due to the revision of the facts charged, the statutory penalty, which serves as the basis for the statute of limitations period (=the changed

[3] According to the statutory punishment as to the facts charged at the time of prosecution, the statute of limitations has not expired but according to the changed statutory punishment as to the facts charged, where the statute of limitations has already expired at the time of prosecution, the court's protocol (=judgment of

[1] Where there is a change in indictment, the completion of the statute of limitations shall be determined at the time of the initial indictment, and it shall not be based on the time of the change in indictment.

[2] If there is a difference in the statutory penalty due to the change of the facts charged by the amendment procedures, the statutory penalty for the changed facts charged shall be the basis for the statute of limitations.

[3] On the basis of the statutory penalty for the facts charged at the time of prosecution, if the statute of limitations has not yet expired at the time of prosecution, but the changed statutory penalty for the facts charged has already expired at the time of prosecution, a judgment of acquittal shall be rendered on the ground that the statute of limitations expired.

[1] Articles 249 and 298 of the Criminal Procedure Act / [2] Articles 249 and 298 of the Criminal Procedure Act / [3] Articles 249, 298, and 326 subparagraph 3 of the Criminal Procedure Act

[1] Supreme Court Decision 80Do3245 delivered on February 10, 1981 (Gong1981, 13706) Supreme Court Decision 82Do535 delivered on May 25, 1982 (Gong1982, 623) Supreme Court Decision 91Do3105 delivered on April 24, 1992 (Gong192, 170)

Defendant

Defendant

Attorney Kim Jin-chul

Busan District Court Decision 2000No3017 delivered on May 10, 2001

All the lower judgment and the first instance judgment against the Defendant are reversed. The Defendant is acquitted.

Judgment ex officio is made.

In a case where there is a change in the indictment, the issue of whether the statute of limitations has expired shall be determined at the time of the initial indictment, and it shall not be determined at the time of the change in indictment (see, e.g., Supreme Court Decisions 82Do535, May 25, 1982; 91Do3105, Apr. 24, 1992); however, in a case where there is a difference in the statutory punishment due to the change in the indictment in accordance with the procedures for the amendment of indictment, the statutory punishment for the changed indictment shall be the basis for the period of the statute of limitations. As such, if the statutory punishment for the charges at the time of the prosecution is based on the statutory punishment for the changed indictment, but the statute of limitations has not expired at the time of the prosecution, a judgment of acquittal shall be rendered

The record reveals that on February 20, 200, the prosecutor filed a prosecution against the defendant on July 20, 200 on the charge that the defendant committed theft by entering the Han Hospital Underground Document and 22 copies of the attached documents. However, on March 21, 2001, the charge against the defendant became more than March 21, 2001, and the defendant applied for the alteration of the indictment to change the charge to the crime of intrusion into the underground documents of Han Hospital and intruded into the structure since July 22, 1995, and the court of the original judgment reversed the first instance judgment against the defendant on the ground that the prosecutor permitted the amendment of the indictment at the fourth day of pleading opened on March 22, 2001, and reversed the judgment of the court of the first instance on the ground that there was evidence of the changed charge, and sentenced the defendant to a suspended sentence of one year for six months, recognizing the defendant guilty.

On the other hand, since the statutory penalty for the crime of aggressioning a structure, which is the altered charge against the defendant, is a imprisonment with prison labor for not more than three years or a fine, it is obvious that the statute of limitations has expired after the lapse of three years from the end of the criminal act (Article 249(1)5 of the Criminal Procedure Act). Since the prosecution of this case was instituted on February 20, 200, more than three years from the time when the criminal act of aggression a structure was completed, the statute of limitations has already expired for the crime of aggression a structure, which is the altered charge at the time of the institution of the prosecution

Therefore, even though the court below should pronounce a judgment of acquittal against the defendant pursuant to Article 326 subparagraph 3 of the Criminal Procedure Act, the court below's disposition is unlawful, and since it constitutes a ground to reverse the judgment of the court below ex officio, the part of the judgment of the court below against the defendant shall be reversed.

However, this case is sufficient for this court to render judgment based on the records of trial, so it is decided directly in accordance with Article 396 of the Criminal Procedure Act.

The reason for appeal by the prosecutor is that there is an error of misconception of facts due to a violation of the rules of evidence in the judgment of the court of first instance, but it is different from the judgment of the court of first instance by modifying the indictment against the defendant when the prosecutor reaches the judgment of the court of first instance.

Since the facts charged against the defendant are the same as the facts charged that the court below found guilty, as mentioned above, since the statute of limitations has already expired at the time of institution of the prosecution, it is so decided as per Disposition by the assent of all participating Justices who reviewed the decision of acquittal pursuant to Article 326 subparagraph 3 of the Criminal Procedure Act.

Justices Shin Shin-chul (Presiding Justice)