In a judgment of substitute in which the name of the crime of larceny and the applicable provisions of the Act on the Aggravated Punishment, etc. of Specific Crimes are changed to the substantive concurrent crimes of simple larceny of Article 329 of the Criminal Act in Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes.

With respect to the application of the prosecutor who changes the name of the crime of larceny and the applicable provisions of Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes into the substantive concurrent crimes of larceny under Article 329 of the Criminal Act in the course of trial on five occasions with the defendant's substitute position, the case holding that the appellate court granted permission on the ground that such a change may lead to a substantial change in the disadvantage of the defendant, but it is evident that it does not fall under a formally disadvantageous change.

Article 365 of the Criminal Procedure Act, Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 37, 38, and 329 of the Criminal Act

Defendant

Both parties

Yellow Dok-hee

Attorney Southern-jin

Daegu District Court Decision 2005Gohap4763 Decided January 20, 2006

The judgment of the court below shall be reversed. The defendant shall be punished by imprisonment with prison labor for one year. The 179 days of detention days prior to the pronouncement of the judgment below shall be included in the above punishment. Of the facts charged in this case, the larceny against the victim non-indicted 1 on March 1, 2005, the larceny against the victim's name and non-indicted 1 on July 16, 2005, and the larceny against the victim's name and non-indicted 1 on July 25, 2005, shall be acquitted, respectively.

1. Summary of the facts charged

A. The facts charged before the amendment

On November 19, 2003, the Defendant was sentenced to six months of imprisonment with prison labor for a violation of the Act on Special Cases concerning the Settlement of Traffic Accidents at the Daegu District Court on January 6, 2004, and completed the execution of the sentence at the Daegu District Prosecutors' Office on May 3, 1983. On October 31, 1985, the Defendant was sent from the Daegu District Court to the juvenile protection case at the Daegu District Court on May 3, 1983. On October 31, 1985, the Defendant was sentenced to the imprisonment with prison labor for a maximum of eight months for special larceny at the Daegu District Court on October, 1985, and was sentenced to the imprisonment with prison labor for two years and six months at the Daegu District Court on May 10, 1989, and had no specific occupation.

(1) On March 1, 2005, within the city bus No. 524, 524, in front of the Daegu Suwon-gu Maternbropob apartment, on 10:40, the victim non-indicted 1 (the victim, the age of 46) used the gap in mobile telephone calls, they cut off the cash of KRW 160,00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000

(2) On March 14, 2005, around 08:05, at the time of the city bus No. 724, prior to the Dong Seo-dong, Daegu Jung-gu, the victim Nonindicted 2 (n), who worked in the city bus No. 724, prior to the Dong Seo-dong, opened a handbag and cut off the cash amounting to KRW 70,000,000, using the gaps of surveillance negligence;

(3) On March 17, 2005, at KRW 200,000 and resident registration certificates owned by Nonindicted 3 (Inn, age 45) in the same way within the city bus No. 425, 18:30,000,000 in front of the Seo-gu Scatteringdong High School located in Seo-gu, Daegu, Seo-gu, Seoul, Seo-gu, Seoul, and KRW 3.80,00,000,000 in total of the market price of the joint-stock with one card;

(4) On July 16, 2005, within the city bus No. 425, 19:00, from the handbag of the women of 20 units in the name in the same way, one lock is cut off from the city bus No. 425, in the same manner; and

(5) On July 25, 2005, at around 19:00, cash 17,000 won in cash located within the city bus No. 425 in front of the pay parking lot located in Seo-gu, Daegu Fagu Scatteringdong was stolen.

B. Ultimately, the progress of the trial of the party which was conducted by the defendant's substitute position

Although the Defendant continued to appear until the date of the 13th trial of the party trial (except the 8th trial date), the Defendant did not appear from the 14th trial date. The court below sent a writ of summons to the Defendant, but did not serve the Defendant on the grounds of the addressee’s unknown whereabouts, etc., and did not confirm the place where the Defendant was served on several occasions with the Defendant’s telephone numbers indicated on the record (see telephone communications content report prepared on July 16, 2007). As a result, the Defendant entrusted the detection of the Defendant’s whereabouts to the Daegu Western Police Station having jurisdiction over the Defendant’s residence to the Daegu Western Police Station, which was located in the Defendant’s registry on July 27, 2007. The court below summoned the Defendant by public notice on July 27, 2007, and summoned the Defendant on the 17,18, and 19 consecutive days of trial without any justifiable reasons, and thus, the Defendant did not appear on the 36th trial date without any justifiable reasons.

(c) Alteration of indictment;

On the date of the 20th trial, the prosecutor applied for the amendment of the Act on the Aggravated Punishment, etc. of Specific Crimes to change the name of the crime in oral statement to "thief" from "violation of the Act on the Aggravated Punishment, etc. of Specific Crimes," and from "Articles 5-4 (1) and 329 and 35 of the Criminal Act" to "Articles 329, 37, 38, and 35 of the Criminal Act". As a result, in the trial on the substitute of the defendant, it may be possible that the habitual larceny under the Act on the Aggravated Punishment, etc. of Specific Crimes, etc. of Specific Crimes, may change to the substantive concurrent crimes of simple larceny, and as a result, it is apparent that it does not fall under the formally disadvantage of the defendant, but it does not infringe the identity of the charges, and permitted the amendment of the Act.

2. Defendant’s assertion and judgment of the court below

A. The Defendant consistently asserted from the investigative agency to the court of the court below that there was no or no theft on a bus as to the provisions of Article 1 through 4 of the previous facts charged prior to the amendment, and that he was on board a bus as to the provisions of Article 5 of the previous facts charged prior to the amendment, but did not have stolen the facts, and denied the entire facts charged prior to the amendment (the Defendant has maintained the purport of such assertion in the immediate trial. Moreover, the Defendant’s separate larceny was discovered, and the investigation was suspended due to the Defendant’s non-compliance with summons).

B. The court below acknowledged the charge of larceny against the victim non-indicted 1 on March 1, 2005 and the charge of larceny against the victim non-indicted 3 on March 17, 2005, and sentenced the defendant to one year and six months of imprisonment with prison labor at the highest court sentenced to discretionary mitigation. The charge of larceny against non-indicted 2 on March 14, 2005, each of the larceny against the non-indicted 4 and 2 on July 16, 2005 and the investigation report on the preparation of the police on July 25, 2005 was not admissible, and there is no other obvious evidence to acknowledge it, and thus, found the defendant not guilty on the ground that it constitutes a case where there is no evidence to acknowledge it otherwise, and thus, it did not separately sentence the order of innocence.

3. Summary of grounds for appeal;

(a) The defendant (the factual errors)

Despite the fact that the court below committed a crime found guilty, the court below erred by misapprehending the legal principles or by misapprehending the legal principles, which affected the conclusion of the judgment.

(b) Prosecutors (De Facto Errors)

According to the evidence submitted by the prosecutor, the court below rejected all the evidence submitted by the prosecutor without any reasonable reason and acquitted the defendant. Thus, the court below erred in the misapprehension of facts and adversely affected the conclusion of the judgment.

4. The judgment of this Court

Before the judgment on the grounds for appeal by the defendant and the prosecutor, the facts charged prior to the change of the defendant are crimes falling under Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, and the statutory penalty constitutes imprisonment with prison labor for life or for not less than three years, and as long as the statutory penalty provides for life imprisonment or for not less than three years, the amendment is not possible as necessary attorney under Article 282 of the Criminal Procedure Act, and if there is no defense counsel or no defense counsel exists, a public defender shall be appointed ex officio in accordance with Article 283 of the same Act. The court below erred by completing the examination of evidence on the first trial date without a defense counsel, and as seen earlier, the court below's judgment cannot be maintained any more due to changes in the indictment at the trial.

5. Conclusion

Therefore, the judgment of the court below is reversed ex officio in accordance with Article 364(2) and (6) of the Criminal Procedure Act without examining the grounds for appeal by the defendant and the prosecutor, and the judgment of the court below is reversed as follows.

On November 19, 2003, the Defendant was sentenced to six months of imprisonment with prison labor for a violation of the Act on Special Cases concerning the Settlement of Traffic Accidents at the Daegu District Court on November 19, 2003 and completed the execution of the sentence at the Daegu Detention Center on January 6, 200, and has no specific occupation;

1. On March 14, 2005, around 08:05, at the time of the city bus No. 724, prior to the Dong Seo-dong, Daegu Jung-gu, the victim Nonindicted 2 (n), who worked in the city bus No. 724, prior to the Dong Seo-dong, opened a handbag and cut off the cash amounting to KRW 70,000,000,000;

2. On March 17, 2005, around 18:30, KRW 200,000 and resident registration certificates owned by the victim Nonindicted 3 (Inn, age 45) in the same way within the city bus No. 425, prior to the Seo-gu Madon High School located in Seo-gu, Seo-gu, Daegu, Seo-gu (Sagu) located in the same manner, cut off the total market value of KRW 3.80,00,000 in total.

1. Each police protocol of Nonindicted 2 and Nonindicted 3 (each police protocol of Nonindicted 2 and Nonindicted 3 against Nonindicted 3 was admitted as evidence in the trial) adopted and investigated the above evidence at the 20th trial date after confirming that it was impossible for the court to lawfully send the witness summons through the adoption of Nonindicted 2 and Nonindicted 3 as a witness on several occasions. In addition, it was found that Nonindicted 2 and Nonindicted 3 were investigated by the police, and that there was a relatively concrete and biological statement about the situation and damage of this case, and on the contrary, there was no other material to deny the voluntariness of the statement, even if Nonindicted 2 and Nonindicted 3 appeared in the trial court and did not make a statement about the authenticity of the police protocol on their own as a witness, it is sufficient to view the credibility of the witness protocol of Nonindicted 31 and Nonindicted 34 of the Criminal Procedure Act.

1. Investigation into criminal records;

1. Report of investigation (verification of the suspect's completion date of execution of punishment);

1. Relevant legal provisions concerning criminal facts;

Article 329 (Larceny of Criminal Act and Selection of Imprisonment with Labor)

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act

1. Aggravation of concurrent crimes;

Article 37 (Aggravation of Concurrent Crimes concerning Theft of Victims Non-Indicted 3 with More Criminal Facts)

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Act

1. Of the revised facts charged, the defendant cut off 1.6 million won, 1.6 million won, 1.6 million won, 1.1 b. b. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. k. d. d. d. d. d. d. d.

2. The Defendant consistently denies each of the above charges since the investigative agency, to the trial court, and in view of the evidence submitted by the prosecutor, first of all, the police protocol on Nonindicted 4, the investigation report, the investigation report, the investigation report, and the investigation report (as to the details of the credit card use by Nonindicted 1) with respect to Nonindicted 4, are inadmissible, since the Defendant did not consent to the admissibility of evidence in the trial court.

3. Next, on March 1, 2005, it is difficult to conclude the Defendant as the offender of the case in light of the witness Nonindicted Party 1’s trial statement, the police statement against Nonindicted Party 1, the statement of Nonindicted Party 1, the card use statement (LG card), the period-based use statement (FG card), and the statement of use payment (FF card) on the sales slip using stolen credit cards among the written evidence of Nonindicted Party 5’s written appraisal of Nonindicted Party 1’s written appraisal of Nonindicted Party 5, which are different from the written evidence submitted by the Defendant, and the written appraisal statement that the Defendant, which was bound in the written statement of the written statement or the trial record of the written statement submitted by the Defendant, is different from the written one submitted by the Defendant, it is difficult to conclude the Defendant as the offender of the case. There is no evidence to acknowledge the Defendant as otherwise on the thief’s name on July 25, 2005 as to the larceny of the victim’s name on July 25, 2005.

4. If so, each of the above facts charged constitutes a case where there is no proof of crime, and thus, a judgment of innocence is rendered under the latter part of Article 32

Although the Defendant had been already punished several times due to the same or similar criminal acts, such as special larceny, stolen goods brokerage, quasi-Robbery, etc., the Defendant did not seem to have any other openings. The Defendant committed so-called retailing crime that steals wallets located in handbags of female passengers located in urban buses, and the nature of the crime is inferior, and the damage recovery measures have not been taken up until the trial is in the trial, and the trial has been conducted in the state of detention after being released by the cancellation of detention due to the expiration of the detention period from the trial at the trial, and the defendant was released from the trial due to the commencement of a separate investigation against the defendant. However, the Defendant should be strictly punished when considering the fact that the indictment was revised in favor of the defendant for ten months until the date of the trial, and that the Defendant’s age, character and conduct, family environment, etc., and that all the conditions of the Defendant appear in the oral proceedings, the judgment of the court below is unfair.

Judges Oral Tax Rate (Presiding Judge) Kim Young-Gyeong-gu