법원의 직권심판의무의 범위- 대법원 2022. 4. 28. 선고 2021도9041 판결- = The Scope Of The Obligation Of The Court’s Ex Officio Judgment. - Supreme Court Decision 2021Do9041 April 28, 2022 -

다국어 초록 (Multilingual Abstract)

The criminal trial begins with a prosecution by the prosecutor submitting the indictment. The fact of the charge stated in the indictment is said to be the subject of judgment by the court. However, the dual theory that even criminal facts recognized as identical to the facts charged are potentially subject to judgment is valid. The dual theory is an attitude of orthodoxy and precedents. It is an interpretation consistent with the criminal procedure legislation. Under the criminal procedure legislation, the effectiveness of prosecution and res judicata are exercised within the identity of the facts charged is recognized. Meanwhile, the indictment modification system serves as a key that makes the potential subject of judgment enter into the real subject of judgment, which enables the appropriate state punishment power and protects the Defendant’s right to defend. Nevertheless, according to the theory of ‘facts stated in the indictment,’ it is unnecessary to modify the indictment if the facts that are different from the facts stated in the indictment do not cause disadvantages to the Defendant’s exercise of the right to defend. In this case, the fact to be recognized is no longer a potential subject of judgment but a real subject of judgment, and the court is obligated to judge a real subject of judgment, which is also in line with the judiciary’s obligation to discover the real truth.
The attitude of the established precedents and the precedent covered in this paper argues that the court has no obligation in principle to confirm the criminal facts that do not require a modification of the indictment as the identity between the criminal facts and indictment is recognized. Instead, the attitude claims the court has an exceptional obligation to confirm the criminal facts if not confirming the facts is noticeably contrary to justice and equity. The attitude is not valid. The criterion of “whether it is noticeably contrary to justice and equity” violates the predictability and legal stability of the people on a very abstract and arbitrary basis. Rather, applying these judgment criteria itself is remarkably contrary to justice and equity. In conclusion, it is valid that the verdict covered in this paper judged that the court has to judge ex officio a crime of adultery by deception on motivation or associated consideration for adultery without the modification of indictment even if the case is prosecuted for the adultery by deception on adultery itself. However, as in conventional precedents, there is a problem in the process of judging according to the criteria of ‘discretion in principle, recognition exceptionally,’ and thus, the verdict needs to be reconsidered.