In the event that the indictment is modified by adding the ancillary charges to the appellate court, the measure of the appellate court

In a case where the prosecutor revises the indictment in addition to the charges in the first and second preliminary and following legitimate procedures in the appellate trial, the judgment of the court below shall not be deemed to be erroneous in the misapprehension of law as it did not judge the facts charged in the indictment and applicable provisions of law, which affected the conclusion of the judgment.

Articles 254 and 298 of the Criminal Procedure Act

Defendant 1 and four others

Defendant 1 and one other and the prosecutor

Seoul Criminal Court of the first instance (86 High Court Decision 86Gohap868)

The part against Defendant 2 and 3 in the judgment of the court below shall be reversed.

Defendant 3 shall be punished by imprisonment for one year.

One hundred and seventy-five days out of the detention days prior to the sentence of the original judgment shall be included in the penalty.

Defendant 2 is not guilty.

All appeals against Defendant 1’s appeal and prosecutor’s defendant 1, 4, and 5 are dismissed.

1. Summary of grounds for appeal;

A. The gist of the grounds for appeal by Defendant 1, his defense counsel, and Defendant 3 is that the sentence imposed by the court below on the above Defendants is too unreasonable.

B. According to the prosecutor's summary of the grounds for appeal Nos. 1 and the summary of the grounds for appeal against Defendant 2 against the prosecutor's defendant 1, the court below acquitted the defendant 1 and 2 on the ground that there is no evidence to prove the remainder of the facts charged against the rules of evidence, although there is sufficient evidence to prove the facts charged against the above defendants, the court below acquitted the defendant 1 and 2 of murdering the victim non-indicted 1 and the defendant 2 in collusion with the defendant 1 and thereby affected the conclusion of the judgment.

The gist of the grounds for appeal against Defendant 1 by the prosecutor is that the sentence imposed by the court below against the above Defendants is too uneasible.

2. Determination on the grounds for appeal

First of all, the prosecutor's first ground of appeal against the defendant 1 did not contain any error in the health team, the court below's process of examining evidence, or the process of selecting evidence, and comprehensively considering each evidence submitted by the prosecutor, it is not sufficient to recognize that the above defendants 1 and 2 agreed that the employees of the beer house have the military prosecutor in preparation for the case where they would threaten the defendant with a lethal weapon, etc., and that the defendant 1 would have attempted to kill the victim non-indicted 1, but it is not sufficient to recognize that the above defendants conspired to kill the victim non-indicted 1. In addition, since it cannot be found that the part of the facts charged that the defendant 1 conspired to kill the victim non-indicted 1 as the defendant 2, and there is no evidence to prove that the defendant 2 conspired with the non-indicted 1 among the facts charged against the defendant 1 and the defendant 1, and thus, it cannot be found that the court below erred in the misapprehension of the scope of the prosecutor's indictment and there is no further evidence to prove the defendant 1's death (the defendant 1).

Next, in light of all the circumstances surrounding the allegation of unfair sentencing against Defendant 1 and the prosecutor on the grounds of health care, the age, character and conduct of the above Defendants, the circumstances leading to each of the instant crimes, the circumstances leading to each of the instant crimes, the means, results, and circumstances after the crime, etc., the sentence imposed by the court below against the above Defendants is appropriate, and it cannot be deemed that it is too heavy or unreasonable. Thus, each of the above grounds for appeal shall not be accepted.

Finally, in relation to the prosecutor's appeal against the defendant 2 and 3 and the appeal against the defendant 3, the court below sentenced the defendant 2 not guilty on the charge of murder ex officio, and the prosecutor changed the indictment by adding the first and the first crime of attempted murder and the crime of violation of the Punishment of Violence, etc. Act to the same defendant through legitimate procedures for the trial against the same defendant since the judgment below cannot be deemed to have any error affecting the judgment by failing to judge the facts charged and the applicable provisions of the Act. Thus, the part of the judgment of the court below against the defendant 2 cannot be ruled to be reversed without the prosecutor's judgment on the grounds that it is obvious that the defendant 3 was born on December 15, 1966, and therefore, according to the records, it is obvious that the defendant 3 was the defendant 2 who was prosecuted as a juvenile under the Juvenile Act, and therefore, it cannot be viewed that the part of the judgment below against the defendant and the prosecutor's punishment against the same defendant cannot be reversed.

3. Conclusion

Therefore, each appeal filed by Defendant 1 and the prosecutor against Defendant 1, 4, and 5 is without merit, and they are dismissed pursuant to Article 364(4) of the Criminal Procedure Act, and the part of the judgment below against the above Defendants in accordance with Article 364(6) of the Criminal Procedure Act as to Defendant 2 and 3 is reversed, and it is again decided as follows.

The facts constituting the offense against Defendant 3 and the summary of the evidence against them, which the members acknowledged, are the same as that of the time of the judgment below, except when the statements of the Defendants in this court are admitted as evidence, and therefore, they are quoted in accordance with Article 369 of the same Act.

In the so-called judgment of Defendant 3, the part of the so-called assault is as follows: (a) Articles 2(2) and (1) of the Punishment of Violences, etc. Act, and Article 260(1) of the Criminal Act; (b) Articles 2(2) and (1) of the Punishment of Violences, etc. Act, and Article 257(1) of the Criminal Act, and each of the above crimes is concurrent crimes under the former part of Article 37 of the Criminal Act; and (c) Articles 38(1)2 and 50 of the Criminal Act are concurrent crimes under Article 38(1) of the Criminal Act, and Article 38(1)2 of the Punishment of Violences, etc. Act, and Article 57 of the Criminal Act provides that Defendant 3 shall be punished by imprisonment with prison labor for one year within the scope of the term of punishment imposed on Defendant 4 who injured Defendant 4.

Of the facts charged of this case, the defendant 1 and 2 did not have any duty to take measures to kill the defendant 1 and 3 at his own time (the defendant 1 and 3 were to take measures to kill the defendant 1 and the defendant 2 without any duty to take measures to kill the defendant 5 and to kill the defendant 1 and the defendant 2 at his own time (the defendant 1 and the defendant 2 omitted) with no duty to take measures to kill the defendant 1 and the defendant 2 at his own time, and to kill the defendant 1 and the defendant 2 at his own time (the defendant 1 and the defendant 2 omitted) with no duty to take measures to kill the defendant 1 and the defendant 3 at his own time, and then to kill the defendant 1 and the defendant 2 at his own time with his own 4 meters away (the defendant 2 omitted). The defendant 1 and the defendant 2 were to kill the defendant 1 and the defendant 1 were to kill the defendant 2 at his own time.

First of all, in relation to Defendant 2’s primary facts charged, first, as to whether Defendant 2 conspired with Defendant 1 to kill the victim Nonindicted Party 2, the above Defendants conspired with Defendant 2 to kill Nonindicted Party 2 on the date of the crime indicated in the indictment, or denied the conspiracy of murder that there was no conspiracy to kill Nonindicted Party 2 even at the scene of the crime indicated in the indictment. In addition, in full view of the evidence submitted by the prosecutor, the above Defendants were in possession of military inspection units owned by Defendant 2, and Defendant 2 was aware of this fact, but the above Defendants carried the military inspection units. However, it was difficult to recognize that the Defendants conspired to kill Nonindicted Party 2 in advance on the ground that there was insufficient evidence to acknowledge that there was lack of evidence to acknowledge that the Defendants conspired to kill Nonindicted Party 2 on the part of the above Defendants.

둘째, 피고인 2가 공소외 1을 직접 살해하는 살행행위가 있었는지의 여부에 관하여 보건대, 피고인 2는 경찰에서의 제1회 조사시와 검찰 이래 원심법정 및 이 법정에 이르기까지 자신이 직접 공소외 1을 대검으로 찌른 사실이 없다고 진술하고 있는 바 검사가 제출한 증거 중, 사법경찰리가 작성한 피고인 1에 대한 제3회 피의자신문조서를 살펴보면, 피고인 2가 피고인 1로부터 위 대검을 빼앗아 공소외 1의 등을 찔렀다는 피고인 1의 진술기재 부분이 있으나, 위 같은 피의자신문조서에 의하면 피고인 1은 위 진술 뒤 곧바로 위 사실을 직접 목격한 바는 없다고 진술하고 있고, 사법경찰리 작성의 피고인 1에 대한 제1회, 제2회 각 피의자신문조서의 각 진술기재에 의하면, 피고인 1은 경찰에서의 위 제3회 조사전에는 자신이 (다방이름 생략)다방 건물안에서 공소외 2를 위 대검으로 1차 찌른 후 도망가는 공소외 2를 위 건물밖까지 따라가서 재차 찔러 쓰러뜨린 후 위 건물밖에서 피고인 2와 마주서서 싸우고 있는 공소외 1의 등을 대검으로 찔렀다고 진술하고 있는 등 그 진술내용에 일관성이 없어 "피고인 2가 공소외 1의 등을 대검으로 찔렀다"는 경찰에서의 피고인 1의 진술은 이를 쉽사리 믿기 어렵고, 그 밖에 피고인 2가 왼손에 군용대검을 들고서 공소외 1을 3,4미터 뒤에서 쫓아가는 것을 목격하였다는 내용의 원심증인 공소외 6의 원심법정에서의 진술, 검사작성의 공소외 3, 6에 대한 각 진술조서 및 피고인 3에 대한 피의자신문조서 중의 각 진술기재, 사법경찰리 작성의 공소외 6에 대한 진술조서(수사기록 412쪽) 피고인 3에 대한 진술조서(수사기록 29쪽), 피고인 5에 대한 진술조서(수사기록 45쪽)의 각 진술기재에 의하면, 피고인 1이 손에 칼을 들고 공소외 1을 뒤쫓고 있는 것을 목격하였다고 진술하고 있고, 특히 공소외 6은 피고인 2가 칼을 든 채 공소외 1을 뒤쫓아 가는 것을 목격하였으나 직접 칼로 공소외 1의 등을 내리찍는 장면을 목격하지 못한 이유를 검사작성의 동인에 대한 진술조서 중에서는 이미 칼에 찔려 쓰러져 있던 공소외 2가 걱정이 되어 공소외 2가 쓰러져 있던 곳으로 되돌아 가버렸기 때문이라고 진술하였다가 원심법정에서는 피고인 2가 공소외 1의 등을 칼로 내리찍을 것 같아 그 자리에서 기절해 버렸기 때문이라고 진술하는 등 그 진술에 일관성이 없어 공소외 3, 6, 피고인 3의 각 진술은 믿기 어렵고, 한편 위 피고인들의 원심 및 당심법정에서의 각 진술, 원심증인 공소외 7의 원심법정에서의 진술, 검사가 작성한 피고인 1에 대한 각 피의자신문조서 중의 각 진술기재, 검사가 작성한 공소외 7에 대한 진술조서 및 사법경찰리가 작성한 공소외 8, 9, 10에 대한 각 진술조서 중의 각 진술기재를 종합하면, 위 공소장기재 범행일시경 위 사건현장 위 군용대검 외에 다른 흉기는 없었던 사실, 공소외 1이 쓰러진 후 피고인 2가 위 군용대검을 든 채 (맥주집 1 생략)맥주집으로 돌아와 그곳에 있던 여종업원들에게 얼른 짐을 싸라고 하면서 "담궜다"라고 사람을 칼로 찔렀다는 뜻의 은어를 사용한 사실 등을 인정할 수 있으나, 앞에서 본 피고인 1의 경찰에서의 제1회, 제2회 조사시의 진술내용 및 피고인 1이 공소외 2를 위 대검으로 찔러 쓰러뜨린 후 흥분한 상태에서 공소외 1을 또다시 찌르므로 이를 제지하기 위해서 위 대검을 빼앗았다는 피고인 2의 변소내용과 피고인 1이 두 사람을 칼로 찔렀다고 피고인 2가 말하더라는 원심증인 공소외 11의 원심법정에서의 진술내용 및 사법경찰리 작성의 공소외 11에 대한 진술조서 중 진술기재 및 피해자 공소외 1의 혈액형이 비(B)형인데 사건 당시 피고인 2가 입고 있었던 흰색 티샤쓰(증 제3호), 청바지(증 제4호)에서는 에이(A)형의 혈액이 검출되고, 피고인 1이 입고 있었던 곤색바지(증 제2호)에서는 비(B)형의 혈액이 검출되었다는 내용의 국립과학수사연구소장 작성의 감정의뢰회보의 기재 등에 비추어 볼 때 위 인정사실만으로는 피고인 2가 위 대검으로 공소외 1의 등을 찔렀다고 단정하기에는 부족하고, 그밖에 검사가 제출한 모든 증거를 살펴보아도 피고인 2가 직접 공소외 1의 등을 찔러 살해하였음을 인정할 만한 증거가 없다.

Next, as to the first and second preliminary facts charged against Defendant 2, each statement made by Defendant 1 in the court below and the court of the trial on the left hand, each statement made by Defendant 3 and 6 in the court of the court below, each statement made by Nonindicted 3 and 6 in the court of the court below, each protocol made by the witness in the court of the court below, each protocol made by Defendant 1 in the prosecutor, and each statement made by Defendant 3 in the second interrogation protocol made by the court of the court below, three times as to Defendant 1 prepared by the assistant judicial police officer, four times as to the fourth interrogation protocol, the second interrogation protocol made by Defendant 3, and the second interrogation protocol made by the court police officer on Defendant 5, each statement made by the prosecutor on Nonindicted 3 and 6, and each statement made by the assistant judicial police officer on Nonindicted 3 and 8 prepared by the prosecutor, but there is no evidence to prove the above facts for the same reason, and therefore there is no evidence to prove that each of the above evidence is a preliminary evidence as to Defendant 2 and No. 2.

Therefore, since the primary and conjunctive facts charged against Defendant 2 return to the absence of proof of crime, Defendant 2 shall be acquitted in accordance with the latter part of Article 325 of the Criminal Procedure Act.

It is so decided as per Disposition for the above reasons.

A case where a judge’s normal study (Presiding Judge) is removed;