Supreme Court: "Defendant Unaware of Prosecution's Indictment Change... Verdict Must Be Retried"

Supreme Court, Seocho-dong, Seoul. Photo by Mun Ho-nam munonam@

[Asia Economy Reporter Kim Daehyun] The Supreme Court has ruled that when the prosecution changes the indictment from forcible molestation to public obscenity during the trial process without properly notifying the defendant, the court's sentencing is procedurally illegal.

On the 21st, the Supreme Court's 3rd Division (Presiding Justice Kim Jaehyung) announced that it overturned the lower court's ruling that sentenced A (26), who was indicted for forcible molestation, to a fine of 4 million won, and remanded the case to Changwon District Court.

Previously, A was tried on charges of molesting the thigh of a woman sitting next to him while watching a video and engaging in obscene acts alone on an express bus in Jinju, Gyeongnam. It was investigated that A's obscene acts lasted for about three hours.

The first trial court acquitted A, stating there was insufficient evidence to consider that he had the intent to molest.

On the other hand, the second trial court found him guilty and sentenced him to a fine of 4 million won. The prosecution obtained the guilty verdict by changing the indictment to add the preliminary charge of 'public obscenity.'

The second trial court pointed out, "Although the victim appeared to have fallen asleep on the bus, considering the time and distance of the crime, it is reasonable to conclude that the defendant was fully aware that he was watching a video and engaging in obscene acts alone."

The problem was that the second trial court conducted the final hearing without notifying A's side in advance about the change in the indictment. As a result, A's side was unable to properly defend against the public obscenity charge during the final argument. Article 142, Paragraphs 2 and 3 of the current Criminal Procedure Rules stipulate that "when the prosecutor applies for a change of indictment in writing, the court must immediately deliver a copy to the defendant or defense counsel."

Accordingly, the Supreme Court ordered a retrial and reconsideration of the case. The court stated, "Forcible molestation and public obscenity differ in the subject of trial and the defendant's defense target, fundamentally infringing on the defendant's right to defense and the defense counsel's right to represent," and added, "The lower court violated the laws regarding the indictment change procedure, which affected the judgment."

This content was produced with the assistance of AI translation services.