(영문) 대법원 2021.6.30. 선고 2019도7217 판결

1. The court shall promptly notify the defendant or his/her defense counsel of the reason for the addition, withdrawal, or modification of facts charged or applicable provisions of law (hereinafter referred to as "revision of indictment") (Article 298(3) of the Criminal Procedure Act). Article 142(1) of the Rules on Criminal Procedure provides that "When the prosecutor intends to add, withdraw, or modify facts charged or applicable provisions of law stated in the indictment in accordance with Article 298(1) of the Criminal Procedure Act, he/she shall submit to the court an application for changes of indictment with the intent thereof stated in the indictment." Paragraph (5) of the same Article provides that "The court may grant an oral permission for changes of indictment where the defendant is beneficial to or consented to by the defendant in the court where the defendant is tried to apply for changes of indictment, notwithstanding the provisions of paragraph (1)." In principle, where the prosecutor intends to do so, he/she may apply for changes of indictment with oral statements (see, e.g., Supreme Court Decision 2017Do5122, Jun. 8, 8, 2017).

According to Article 142(2) and (3) of the Regulation on Criminal Procedure, where a public prosecutor makes a written request for changes in the indictment, the public prosecutor shall attach a copy corresponding to the number of the accused, and the court shall immediately deliver the copy to the accused

In light of the contents and purport of the above provisions on the procedures for the amendment of a bill of amendment, if the court permitted the amendment of a bill of amendment without delivering and delivering a duplicate of the written application for the amendment of a bill of amendment, and convicted the defendant or his defense counsel as to the facts stated in the written application for the amendment of a bill of amendment, the court’s error that did not deliver and deliver a duplicate of the written application for the amendment of a bill of amendment constitutes a violation of the Acts and subordinate statutes affecting the conclusion of the judgment. However, if there are special circumstances to deem that the defendant’s defense right or defense counsel’s defense counsel did not infringe upon the defendant’s defense right or defense counsel’s right to defense counsel, such as where the contents of the amendment of a bill of amendment do not interfere with the defendant’s defense right and defense counsel’

2. According to the record, the following facts are revealed.

A. The prosecutor prosecuted the Defendant for the crime of indecent act by compulsion, stating that “the Defendant was guilty of committing indecent act by force while looking at obscene videos in a high speed bus and committing indecent act by force.” The Defendant argued that there was no indecent act in the first instance court, and the first instance court acquitted the Defendant on the ground that there was insufficient proof of indecent act and intentional act.

The prosecutor appealed against the judgment of the first instance court.

B. On April 15, 2019, at the lower court, the prosecutor submitted an application for modification of indictment, which adds the crime of public performance and obscenity as a preliminary charge to the effect that “the Defendant committed an obscene act by engaging in self-defense at the date, time, and place indicated in the above facts charged.”

On April 18, 2019, the lower court: (a) on the second trial on April 18, 2019, the Defendant stated the facts charged, the criminal facts, and the applicable provisions of the indictment in accordance with the said written application for changes of indictment; and (b) the Defendant and the defense counsel stated that they denied the ancillary charges. The lower court stated that the Defendant and the defense counsel provided the opportunity to make a final statement, and that the Defendant did not commit indecent act in relation to the facts charged by

C. On May 16, 2019, the lower court reversed the first instance judgment on the date of the second trial, and convicted the Defendant of the conjunctive charges, and sentenced the Defendant to a fine of KRW 4 million.

Meanwhile, after the closing of argument in the lower court, a duplicate of the application for changes in indictment was served on the defense counsel on April 19, 2019, and on May 3, 2019.

3. We examine these facts in light of the legal principles as seen earlier.

The ancillary facts charged by the prosecutor requesting changes in the indictment at the original trial are about the crime of obscenity, and there are differences in the form of conduct, legal interest, nature of the crime and statutory punishment compared to the previous facts charged. The crime of indecent act by compulsion does not directly affect the establishment of the crime, but the crime of obscenity is a crime of openly committing indecent act. Therefore, the previous facts charged and the ancillary facts charged are different from those subject to adjudication and defense of the defendant.

Nevertheless, the lower court reversed the judgment of the first instance court that acquitted the Defendant or his defense counsel on the previous facts charged after closing the pleadings on the day without delivering or delivering a duplicate of the written application for changes to the indictment by the prosecutor, and subsequently convicted the Defendant of the charges. This can be seen as essentially infringing the Defendant’s defense right or defense counsel’s defense right. The lower court erred by misapprehending the Acts and subordinate statutes on the procedures for changes

Of the judgment of the court below, the part of the ancillary charge should be reversed. As long as the part of the ancillary charge is reversed, the whole judgment of the court below, including the primary charge, should

4. The Defendant’s appeal is with merit, and the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices