Obstruction of Defense Rights Blocks Indictment Amendment

Published 08 Jan.2025 14:13(KST)

Confidential Information Leak Charge: "First Trial Sentence Too Light"
Sentence Increased in Second Trial After Changing Charges
"No Special Circumstances" Appeal Dismissed

[Supreme Court Ruling]

The Supreme Court ruled that in principle, changes to the indictment are not allowed if they excessively destabilize the defendant's status in the litigation process or essentially infringe upon the defendant's right to defense due to special circumstances. The Supreme Court provided criteria for such special circumstances, stating that even if special circumstances exist, changes to the indictment may exceptionally be permitted if, without such changes, the purpose of criminal proceedings?to discover substantive truth?would be significantly undermined, resulting in a manifestly unjust outcome. However, whether such an exception applies must be judged very strictly and carefully, considering the guarantee of the defendant's legal stability.

Legal Newspaper

Supreme Court Criminal Division 2 (Presiding Justice Kim Sang-hwan), Case No. 2020Do11949 (December 12, 2024 ruling)

[Judgment Result]

The appellate court’s decision sentencing Mr. A, indicted for violating the Military Secrets Protection Act, to a suspended prison sentence was upheld.

[Facts and Lower Court Decisions]

Mr. A was indicted for violating Article 13(1) of the Military Secrets Protection Act by leaking military secrets he learned through his work (the first indictment). The first trial court approved the prosecutor’s request to change the indictment interchangeably to the second indictment, which charged violation of Articles 11 and 12(1) of the Military Secrets Protection Act for detecting or collecting military secrets by unlawful means and leaking them to others, and sentenced Mr. A guilty on the second indictment with a one-year suspended prison sentence. The military prosecutor appealed, arguing the sentence was too lenient. At the first hearing of the appeal, the military prosecutor requested to add the first indictment as the principal charge and change the second indictment to a subsidiary charge. Mr. A’s defense counsel argued abuse of prosecution rights, but the appellate court approved the prosecutor’s request, found Mr. A guilty on the first indictment, and sentenced him to one year and six months in prison with a three-year suspension.

[Supreme Court Ruling (Summary)]

The indictment amendment system under Article 355 of the Military Court Act aims to prevent defendants from receiving unexpected punishments by clearly limiting the subject of trial through the indictment amendment procedure, even within the scope where the identity of the charges is recognized from a party-autonomy perspective. This system promotes proper exercise of criminal authority, litigation economy, and substantively guarantees the defendant’s right to defense.

Since criminal proceedings are dynamic and evolving, it is possible that the facts initially charged may appear differently as the trial progresses. Therefore, changes to the indictment such as withdrawing and re-adding specific charges within the scope where the identity of the charges is recognized are not impossible. However, in light of the spirit of the constitutional principle of prohibition of double jeopardy stated in the latter part of Article 13(1) of the Constitution, such changes cannot be freely permitted considering the defendant’s human rights and legal stability, which may be destabilized during the litigation process.

Therefore, if changes to the indictment excessively destabilize the defendant’s status in the litigation process or essentially infringe upon the defendant’s right to defense due to special circumstances, such changes are in principle not allowed. Whether such special circumstances exist must be judged comprehensively considering factors such as: the prosecutor’s substantive intent and timing of the request for indictment amendment; whether the prosecutor delayed exercising the authority for a long time despite having sufficient opportunities and suddenly requested the amendment after the defendant’s defense succeeded; the number, timing, and types of indictment amendment requests including withdrawal or addition of charges; whether the prosecutor’s request effectively excludes a specific charge from the trial subject and then reverses that exclusion; differences in defense content between the original and amended charges; the defendant’s exercise of defense rights before and after the amendment request; whether the defendant’s prior defense efforts are rendered futile by the amendment; and whether the defendant can mount a substantial and sufficient defense against the amended charges. However, even if such special circumstances exist, if without the amendment the purpose of criminal proceedings?to promptly discover substantive truth through proper procedures?would be significantly undermined, resulting in manifestly unjust and inequitable outcomes, such changes may exceptionally be permitted. Whether such an exception applies must also be judged very strictly and carefully, considering the guarantee of the defendant’s legal stability and the value of the indictment amendment system.

In this case, it is difficult to find special circumstances that would prohibit the indictment amendment; therefore, there is no error in the lower court’s decision, and the appeal is dismissed.