[1] Measures to be taken by a prosecutor in a case where it is found that the facts constituting habitual special larceny, including the facts constituting a crime before and after the additional indictment of habitual special larceny, after being prosecuted for a special larceny

[2] [1] The measures to be taken by the court in a case where it is evident that the prosecutor's additional indictment was omitted among the acts constituting a single comprehensive crime

[3] The case reversing the judgment of the court below which rendered a judgment dismissing the prosecution immediately on the ground that there is room to regard the additional indictment as the purpose of modification of indictment, and the incomplete hearing

[1] In a case where the prosecutor first indicted a special larceny crime, which is a simple crime, and charged with an addition of a habitual special larceny crime which is a single crime, but it is found that both the facts charged before and after the trial were constituted a single crime of violation of the Act on the Aggravated Punishment, etc. of Specific Larceny, which is a habitual special larceny (thief) by including all the facts charged before and after the trial process, in principle, the prosecutor first changes the facts charged in the indictment for the crime charged first, and then applies for changes in accordance with the crimes and applicable provisions of the Act, and requests for changes in the indictment corresponding thereto. In addition, the revocation of prosecution for the additional

[2] In a case where a part of the facts constituting an inclusive crime is prosecuted for an inclusive crime and the remaining facts constituting an inclusive crime are revealed to be part of the act constituting an inclusive crime, the purport of applying for punishment of all the facts constituting an inclusive crime before and after the addition of the facts charged can be deemed to have been included. Thus, there is no difference between the amendment of indictment and the amendment of indictment, such as adding the facts charged, and there is no difference in its substance. Thus, in such a case, if it is evident that the submission of the additional indictment by the prosecutor's seat constitutes an inclusive crime, and it is obvious that the submission of the facts charged was made in addition to the facts omitted in the indictment and the applicable provisions were to be changed into the name of an inclusive crime and the applicable provisions, and it is not a duplicate prosecution against the single crime, it is unnecessary to make a judgment on the whole facts charged before and after the addition and make a judgment on the rejection of the additional indictment.

[3] The case reversing the judgment of the court below on the ground that the court below erred by misapprehending legal principles as to the scope of adjudication without modification of an indictment in the case of an additional indictment for a single crime, on the ground that it is not a double indictment for a single crime but an additional indictment for a single crime, and it is not a double indictment for a single crime. Thus, the court below reversed the judgment of the court below on the ground that the court below's decision to dismiss the prosecution on the ground that it is not a double indictment for a single crime but a single indictment for an additional indictment for a single crime, and it is not a double indictment for a single crime.

[1] Article 331 of the Criminal Act; Article 332 of the former Criminal Act (amended by Act No. 5057 of Dec. 29, 1995); Article 298 of the Criminal Procedure Act / [2] Article 298 and Article 327 subparagraph 3 of the Criminal Procedure Act / [3] Article 331 of the Criminal Act; Article 332 of the former Criminal Act (amended by Act No. 5057 of Dec. 29, 1995); Article 298 and Article 327 subparagraph 3 of the Criminal Procedure Act

[2] Supreme Court Decision 4280Do137 delivered on January 6, 1948, Supreme Court Decision 93Do2178 delivered on October 22, 1993 (Gong193Ha, 3199)

Defendant 1 and one other

Prosecutor

Attorney Park Dong-young

Daegu High Court Decision 96No105 delivered on June 26, 1996

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

The prosecutor's grounds of appeal are examined.

1. On the second ground for appeal

Examining the reasoning of the judgment below in light of the records, the court below is justified in finding that the above injury was caused by Defendant 1’s confession or non-conformityless victim’s statement in the court of first instance, as long as the circumstances leading up to the occurrence of the injury of this case among the facts charged with robbery, bodily injury, and special obstruction of performance of official duties are not clearly revealed, since it cannot be concluded that the above injury was caused by Defendant 1’s confession or non-conformityless victim’s statement in the court of first instance, and therefore, the above facts charged constitute a case where there is no proof of crime, and there is no error of law that found the facts erroneous in violation of the rules of evidence against the rules of evidence, such as the theory of the judgment below. Ultimately, the court below’s selection of evidence and the recognition of facts, which are the exclusive authority, cannot be accepted.

2. On the first ground for appeal

A. According to the reasoning of the judgment below, the court below rejected Defendants 1 and 2 as charges of larceny on September 15, 195, and found Defendants 1 and 3 as charges of larceny and 2 of this case's charges of larceny under the Act on the Aggravated Punishment, etc. of Specific Crimes (No. 95 and No. 212 of the same year, and No. 2 of the same year, No. 2 of this case's charges of larceny and No. 2 of this case's charges of larceny, which were charged with the crime of larceny and No. 2 of this case's charges of larceny and No. 2 of this case's charges of larceny, the court below rejected Defendants 1 and 2 of this case's charges of larceny and 2 of this case's charges of larceny and subsequent charges of this case's charges of this case's charges of larceny and subsequent to the second instance court's 17th new charges of this case's charges of this case's charges of larceny and the second instance court's charges of this case'.

B. First of all, the judgment of the court below on the scope of adjudication in a case where a part of an inclusive crime is prosecuted is just (see, e.g., Supreme Court Decisions 82Do2829, Apr. 26, 1983; 85Do1435, Feb. 14, 1989); and first, the actual and potential scope of adjudication on the case prosecuted is within the scope recognized as identical only on the basis of the facts charged in the indictment, and thus, cannot be accepted.

C. As in the instant case, in a case where it is found that the prosecutor first prosecuted the special larceny crime and added a habitual special larceny crime, which is a single comprehensive crime, but all the criminal facts charged before and after the trial process were constituted a crime of violation of the Act on the Aggravated Punishment, etc. of Specific Larceny, which is a habitual crime, in principle, by adding the criminal facts stated in the indictment for the additional indictment to the criminal facts of the prosecuted case, and then changing the indictment to habitual crimes, and applying for changes to the indictment in line with the applicable provisions of the Criminal Procedure Act, and making a revocation of the prosecution for the additional indictment is a faithful treatment in accordance with the provisions of the Criminal Procedure Act.

However, in a case where a part of the facts constituting a single comprehensive crime is found to be part of an act constituting a single comprehensive crime after being prosecuted for a single comprehensive crime, and the remaining facts constituting a single comprehensive crime, it can be deemed that the purport of applying for punishment of all the facts charged before and after the above additional indictment is included, and there is no difference between the procedure of adding the facts charged and the procedure of the amendment of the indictment, such as adding the additional charges, and there is no difference in its substance. Thus, in the above case, the submission of the additional indictment by the prosecutor's seat as stated above is an act constituting a single comprehensive crime, thereby supplementing the omission in the indictment first, and changing the name of the crime and applicable provisions into the name of the single comprehensive crime, and it is evident that the additional indictment was not filed in duplicate, it is not necessary to make a judgment on the whole facts charged before and after the additional indictment and to dismiss the additional indictment (see Supreme Court Decision 203Do2178 delivered on October 22, 193).

This is because Article 298 of the Criminal Procedure Act, even if the defendant's right of defense is within the scope recognized as identical to the facts charged, it does not clearly limit the object of the trial according to the procedures for the amendment of the indictment, and prevents the defendant from suffering unexpected disadvantage by preventing the defendant from being subject to unexpected punishment, even if the object of the trial is clearly limited even in the case of additional indictment, it does not interfere with the exercise of his right of defense even in the case of the amendment of the indictment. The purpose of Article 327 subparagraph 3 of the Criminal Procedure Act, which provides for the decision of dismissal of prosecution in the case of double indictment, is to allow the defendant not to be subject to double danger and the court not to render two substantive judgments in the case of the same case. However, since some of the facts of the comprehensive crime are considered as the amendment of the indictment, the defendant cannot be subject to double danger, and since the judgment cannot be sentenced to the first sentence, it cannot be ruled out that there is a possibility that the two court's decision can be a substantive and economic problem.

According to the records, it is clear that the prosecutor made a statement that he will withdraw the name of the crime and the applicable provisions of Article 331(2) and (1) of the Criminal Act from the indictment in the fourth instance trial of the first instance, in spite of the fact that the prosecutor violated the procedure stipulated in Article 298 of the Criminal Procedure Act, and thus there is no validity of modification of the indictment. However, as the court below acknowledged, the prosecutor's intention is deemed to constitute a crime including the first case of 212 and the first case of 277 additional indictment, and it is deemed that the combined crimes and the applicable provisions of Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes were to be changed to "the Act on the Aggravated Punishment, etc. of Specific Crimes," and Article 331 of the Criminal Act. On the other hand, the court below did not err by misapprehending the legal principles as to the amendment of the indictment, and it cannot be viewed that the prosecutor's additional indictment was made with the purport of an additional indictment as a comprehensive indictment.

3. Therefore, among the judgment below, the dismissed part of the judgment below cannot be reversed without examining the remainder of the argument as to this part. The dismissal part and the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, which the court below found guilty, are related to a single comprehensive crime, and since the court below sentenced the remaining guilty part and each of the crimes which the court below found guilty to be concurrent crimes, the judgment of the court below is

Therefore, the lower judgment is entirely 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 on the bench.

Justices Chocheon-sung (Presiding Justice)