The Korean Association of Criminal Procedure Law最新文献

{"title":"A Study on the Use of Artificial Intelligence for the Selective Search and Seizure of Digital Evidence","authors":"W. Lee","doi":"10.34222/kdps.2022.14.4.65","DOIUrl":"https://doi.org/10.34222/kdps.2022.14.4.65","url":null,"abstract":"Our society is already experiencing the Fourth Industrial Revolution. Therefore, most of our lives are influenced by the technology of the Fourth Industrial Revolution. One of the core values of the 4th Industrial Revolution is to rebuild the real space in the virtual space by transferring information in the real space to the virtual space. As a result, all objects, movements, and attributes in the real space are digitized and stored. Amid these changes, the importance of digital evidence is already beyond analog evidence. However, investigations and trials of crimes are still conducted only in analog spaces. Therefore, a technical device that connects the digital world and the analog world is required. The problem is that digital evidence and related legal regulations are not sufficient in the current Criminal Procedure Act. Therefore, investigative agencies have a difficult task to collect digital evidence and prove guilt in accordance with precedents and internal regulations. \u0000Article 106 of the Criminal Procedure Act stipulates a method of confiscating digital evidence. The problem is that among the suspect’s numerous information, it is not easy to collect only information related to criminal charges without violating the suspect’s basic rights. Therefore, as a way to overcome such difficulties, a method of performing seizure using a technical method such as artificial intelligence is being considered. Therefore, as a countermeasure against it, first of all, ground rules for legal procedures must be prepared. In addition, the reliability of artificial intelligence application technology should be recognized from a trusted institution, and users should be able to control the artificial intelligence technology used for screening and seizure. As technology develops in the future, similar problems may continue to occur. Therefore, comprehensive research related to the digital evidence legal system and technology system is needed.","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128570470","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"An Analysis of the criminal retrial system and procedures","authors":"D. Kim","doi":"10.34222/kdps.2022.14.4.133","DOIUrl":"https://doi.org/10.34222/kdps.2022.14.4.133","url":null,"abstract":"The criminal retrial system is the only system that can find substantive truths by correcting judicial errors. It is also justified in guaranteeing human rights by bringing honor back to the defendant and recognizing the state's responsibility. The Criminal Procedure Act stipulates that if there is a certain reason, a final judgment of guilt can be requested for a retrial in favor of the person sentenced. \u0000However, criticism has been raised since the system itself is not so effective as it is extremely time-consuming as well as being difficult to prove. This study analyzed retrial procedures to solve the legal and practical problems. \u0000When submitting a request, it is difficult to get investigative and trial records necessary for a retrial. It is also problematic to confine the subject of request to a final judgment of guilt. In addition, when deciding commencement of retrial, there is no regulation on when to start the retrial. The claimant had to wait indefinitely for the court's decision. If the defendant dies during the lawsuit, the new claimant had to resume the lawsuit. Sometimes there are meaningless requests for opinions, reckless appeals. In the retrial stage, it was pointed out that there was no active effort to reflect on and correct the past. As the court took a passive attitude in a retrial, even the innocent accused could not be apologized. \u0000In this study, to activate the criminal retrial procedure, several alternatives were proposed. First, abolishing de facto practices such as getting investigation records and trial records and enhancing meaningless appeals and re-appeal were suggested. The necessity of revising the law for the retrial procedure was also discussed. It is necessary to establish legal regulations for effective system establishment, such as expanding the subject of retrial, clarifying the period for the commencement of retrial, and introducing litigation succession regulations.","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"198 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115345175","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Revocation of Suspension of Execution of Sentence and Due Process of Law","authors":"H. Park","doi":"10.34222/kdps.2022.14.4.103","DOIUrl":"https://doi.org/10.34222/kdps.2022.14.4.103","url":null,"abstract":"Under the revision of the Penal Code in 1995, it became possible to attach probation as a condition to the suspension of execution of sentence. Before the revision, a suspension could be revoked only at the time of sentencing if it was discovered that due to legal restraints, the suspension would otherwise have been disqualified. If a person who was sentenced the suspension of execution of sentence with the condition of probation (hereinafter referred to as ‘the sentenced person’) is found to have seriously breeched the probation obligation, revocation procedure can be initiated. After reviewing whether or not the breech had actually occurred and assessing the gravity of the breech, the courts will render a decision as to revocation of the suspension. If the suspension is revoked, the sentenced person will be imprisoned for the original sentence. \u0000Because the revocation deprives the sentenced person of liberty, special care must be taken to adhere to the due process of law principle during the revocation procedure. Although securing the level of due process protection in revocation procedure would be difficult to attain to the level for the accused in criminal procedure, reasonable protections must be provided unless they conflict with the status of the sentenced person. \u0000The sentenced person must be given the opportunity to present evidence in his or her favor and to speak against any adverse evidence in open hearing. In special situations such as the sentenced person is in custody or is indigent, legal assistance must be provided according to the due process of law principle. These would provide the minimum level of protection. Especially in the revocation procedure of probation attached cases there must exist a more prudent and effectual hearing process in ascertaining the existence and gravity of the breaches. The Korean Criminal Procedure Act only requires that the court hear the sentenced person’s opinion regarding revocation with or without an open hearing thereby failing to offer minimum procedural protection. \u0000Strict evidence rules of typical criminal trials are not directly applied to the revocation hearing due to the basic differences of both procedures but could be used within a reasonable scope. In addition, through developing fair and objective revocation guidelines, unwarranted disparities in revocation decisions can be avoided or at the very least minimized.","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132421284","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Study on the Procedural Control of Police","authors":"Oung-Seok Jeong","doi":"10.34222/kdps.2022.14.4.31","DOIUrl":"https://doi.org/10.34222/kdps.2022.14.4.31","url":null,"abstract":"With the inauguration of the Yoon Seok-ryul government, discussions on police reform are hot. The core of this can be seen as the establishment of a so-called “police station” within the Ministry of Public Administration and Security, and the reason why the establishment of a police station became a key task in the Yoon Seok-ryul government is that control of the police has been raised as police investigation rights have expanded. Accordingly, Minister of Public Administration and Security Lee Sang-min launched the Police System Improvement Advisory Committee (hereinafter abbreviated as the Advisory Committee), established a police station in the Ministry of Public Administration and Security according to the advisory committee’s recommendation, and the police station was launched on August 2, 2022. Regarding the launch of the police station, there is constant controversy over whether “security” is the secretary of the Ministry of Public Administration and Security, and Article 34 (5) of the Government Organization Act stipulates security affairs as the National Police Agency, but it is not separately stipulated in the duties of the Minister of Public Administration and Security. \u0000However, through the revision of the Criminal Procedure Act and the Prosecutor’s Office Act in 2020, the prosecution’s command of investigation was abolished, and the scope of direct investigation was limited to six crimes, and reduced to two crimes (0.4%) through the revision in 2022. According to this, the judicial police have the right to initiate and proceed with the investigation of 99.6% cases and terminate the investigation, so a new interpretation of the police’s investigation work is needed. As a result, the Minister of Justice and the Minister of Public Administration and Security were forced to review the final attribution of the police investigation, and eventually appeared as a consultative office for the enactment of the Presidential Decree, which stipulates the investigation rules under Article 196 (2) of the Criminal Procedure Act. This is because Article 66 (Presidential Status/Responsibility) (4) stipulates that “administrative power belongs to the government” and Article 88 (Power/Composition of the State Council) (1) stipulates that “the State Council deliberates on important policies under the authority of the government”. \u0000However, no matter what judicial system is followed, the criminal justice system is directly related to the rights and interests of the people in the process of realizing the national criminal right, and it is difficult to correct it if it is incompletely designed due to the nature of the system. The problem is that although the Criminal Procedure Act was revised in the name of judicial reform, much of the case was granted to judicial police officers, ignoring the reality of Korea being investigated by judicial police officers, which is a modified structure different from the continental and Anglo-American judicial systems. \u0000In t","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121734333","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Study for the Press's Criminal Report and Fair Criminal Procedure","authors":"Hyeokki Kim","doi":"10.34222/kdps.2022.14.3.175","DOIUrl":"https://doi.org/10.34222/kdps.2022.14.3.175","url":null,"abstract":"The media reports on crime have a positive effect that are satisfying the right of the people to know, preventing damage in the same crime, and helping to investigate unsolved specific cases. On the other hand, that has a negative effect that it can undermine the principle of presumption of innocence, cause infringement of personality rights, and that it can infringe fair investigation and fair trial by strengthening the guilt in criminal justice procedures. There is a need to find ways to control negative effects while maintaining positive effects of media reports on crime. In the media reports on crimes, it is necessary to carefully select the cases to be disclosed in the public information guidelines set by the investigative agencies, and it is necessary to unify the public information regulations separately provided by the police and the prosecution. Furthermore, it is necessary to establish standards in public information regulation in the case after the prosecution. Also, the standards of public information should be strengthened to prevent indiscriminate exploration reports, speculative reports, and provocative crime reports due to competition among media organizations. For the investigation reports or speculative reports on suspicions that have not been confirmed, it is necessary to prepare regulations that can admits unintentional intentions in the defamation crime if the preliminary work is not done to guarantee the objectivity of the report, or to change the burden of proof in the civil illegal act liability. Furthermore, it is necessary to consider introducing obstruction of justice to minimize the impact of uncertain media reports on the fairness of criminal justice procedures.","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"319 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123473539","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Comparative Legal Study on Introduction of Decryption Order to Third Parties","authors":"Chohee Bae, Kyung-Lyul Lee","doi":"10.34222/kdps.2022.14.3.99","DOIUrl":"https://doi.org/10.34222/kdps.2022.14.3.99","url":null,"abstract":"Even if the investigative agency knows that the crucial information necessary to investigate the crime is stored in the mobile phone, unless the password is released, there is no proper way to confirm or secure it. Although the number of cases requiring forensics that can find the substantive truth of a case using digital forensic technology is rapidly increasing every year, successful decryption of mobile phones is not so common that they are considered a major obstacle to digital forensics success. It is a social problem that the case is buried because the relevant information necessary for the discovery of the substantive truth of an important event is not secured in a timely manner. \u0000As a solution, the method of forcing the suspect to release the mobile phone password or requesting their cooperation through the decryption order system can be considered. However, this may excessively infringe on personal privacy and may violate the constitutionally guaranteed privilege to refuse self-incrimination. This is because the violation of the right to refuse to make a statement can be a problem depending on whether it is understood as personal information or a statement according to the characteristics of the mobile phone password. \u0000Therefore, it was investigated whether the introduction of the decryption order to unlock the password of the mobile phone infringes on the basic rights guaranteed by the Constitution. This is because the degree of protection will vary depending on whether the view of the password is personal information or personal information and whether it is a statement or not, that is, depending on the nature and status of the password. In this case, if it is impossible to force a decryption order on individuals such as criminal suspects due to the fundamental rights guaranteed in the Constitution, we examine whether it is possible to force a decryption order or request cooperation from a third party, a mobile phone manufacturer, to solve this problem. searched for. In particular, third parties and companies were divided into mobile phone manufacturers and information and communication service providers, and reviewed from the perspective of protection and exceptional use of personal information. \u0000In principle, personal information is subject to protection under the current law, and exceptional use other than the purpose of collection is specifically stipulated in the “Personal Information Protection Act”. However, since the specific interpretation and application are not necessarily clear, we looked at foreign legislative cases comparatively in relation to the provision of personal information to a third party. Although there are means to acquire, this method of cooperation takes a long time, so it was judged that it is not an appropriate means for securing evidence for digital crimes in the information society. In addition, the introduction of a decryption order to a third party is necessary as a means to secure criminal information ","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133643261","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Künftige Revisionsaufgabe im Hinblick auf die Rechtsvergleichung des Unmittelbarkeitsprinzips","authors":"Sung Ryong Kim","doi":"10.34222/kdps.2022.14.3.29","DOIUrl":"https://doi.org/10.34222/kdps.2022.14.3.29","url":null,"abstract":"Die jüngste Änderung der Strafprozessordnung in Korea lässt Zweifel aufkommen, was die Gesetzgebung und die Rechtsprechung über den Zweck des Strafverfahrens und die Rolle der Gerichte und Richterinnen und Richter denken. Der Autor meint, dass insbesondere die Revision des §312 der koreanischen Strafprozessordnung auf der Spitze zu stehen scheint. Als Grund für die Gesetzesänderung wird die Stärkung des Unmittelbarkeitsprinzips und der Beweisaufnahme in der Hauptverhandlung vermutet. In dieser Arbeit wird es untersucht, was man in den Ländern der europäischen Tradition, also des kontinentalen Rechts, die das Prinzip der Unmittelbarkeit als eines der Grundprinzipien des Strafverfahrens anerkennen, unter dem Unmittelbarkeitsprinzip versteht, um es deutlicher zu machen, ob es das richtige Verständnis vom Unmittelbarkeitsprinzip ist, dass persönliche Beweise, die nicht vor einem Richter vorgebracht werden, nicht als Beweismittel verwendet werden können. Und noch es wir geprüft, ob Praxis und Theorie im Bezug auf die Unmittelbarkeit in Korea kein Problem in sich haben. \u0000Dass das Unmittelbarkeitsprinzip die fundamentale Bedeutung hat, dass es ein optimales MIttel für die materielle Wahrheitsfindung ist und dass Deutschland, Schweiz, und anderen europäischen Länder zeigen, dass der Rückzugs vom Unmittelbarkeitsprinzip nicht vom Rechtsstaatsprinzip abweicht, wenn das Recht auf ein Kreuzverhör gewährleistet ist und die Unterstützung eines Anwalts auch vor und außerhalb des Prozesses verfügbar ist, um effizient auf die jüngste Flut von Rechtsstreitigkeiten und Verzögerungen bei der Bearbeitung von Fällen reagieren zu können, sind in dieser Abhandlung vorgestellt. \u0000Der Autor, der es für notwendig hält, das Problem der durch verschiedene Teilrevisionen verursachten systematischen Widersprüchlichkeit der geltenden Strafprozessordnung durch eine sog. Reform zu lösen, analysiert das Unmittelbarkeitsprinzip unter dem Gesichtspunkt der Rechtsvergleichung und versucht vorzuschlagen, was die künftige Revisionsaufgabe sein soll.","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130015401","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Role and Continual Responsibilities of the Korean Sentencing Commission Towards Successful Sentencing Reform","authors":"H. Park","doi":"10.34222/kdps.2022.14.3.135","DOIUrl":"https://doi.org/10.34222/kdps.2022.14.3.135","url":null,"abstract":"Fifteen years after the sentencing guidelines system was first introduced in Korea, sentencing guidelines have been set for most major crimes and the compliance rate has proven to be high. The Korean Sentencing Commission adopted the gradual approach in designing the guidelines and has worked to enhance the objectivity of the sentencing guidelines by way of quality evaluation of the sentencing factors. It appears that at present the sentencing guidelines system has been firmly implemented into the justice system. \u0000However, for sentencing reform to be successful, the Sentencing Commission must be faithful to meet its perennial responsibilities. These responsibilities include but are not limited to consistently designing and revising the guidelines, more evidence-based monitoring of compliance to and the effects of the guidelines, making public and educating others about the sentencing guidelines, providing access to the disclosure of sentencing information, and establishing sound sentencing policies with an emphasis on very important issues such as pertaining to corrections. \u0000To that end, the Commission should operate an empirical data based sentencing guidelines system by way of collection and analysis of high quality sentencing data. Abundant and sound data will provide for a better sentencing data base and a sentencing information system which will in turn be pivotal in achieving a higher level of research and education. These tasks will perforce require cooperation between various criminal justice organizations. Unfortunately, the Korean Sentencing Commission’s on-going operations have not reached an optimal level in collecting qualified sentencing data to ensure the implementation and adherence to the guidelines nor effectively researching sentencing policies. \u0000Contrary to the original intent of the establishment legislation, the Sentencing Commission has operated as a mere branch under the jurisdiction of the Korean Supreme Court and has focused most of its attention to the promulgation of various individual guidelines. The Sentencing Commission must be treated as an independent and specialized entity to ensure successful implementation of its continual responsibilities. The goal of sentencing reform can only be attained by the ongoing efforts of the Commission and its willingness to work towards this common end.","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114368456","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Public Service Duties and Roles of the Public Prosecutors","authors":"Han-Kyun Kim, Chang Kuhn Kim","doi":"10.34222/kdps.2022.14.3.71","DOIUrl":"https://doi.org/10.34222/kdps.2022.14.3.71","url":null,"abstract":"This essay aims to review the public service duties and roles of the public prosecutors from the viewpoint of criminal justice reform, esp. of the reform of public prosecutors as state power institutions which has had enormous impact on the South Korean politics and people’s life. \u0000According to the Articel 4 of the Prosecutor’s Office Act, each prosecutor shall have the duties and authority falling under any of the following subparagraphs as a representative of public interests: ➀ Matters necessary for investigating crimes and instituting and maintaining public prosecution: Provided, That the scope of crimes for which a prosecutor may commence an investigation shall be significant crimes prescribed by Presidential Decree, such as corruption crimes and economic crimes, Crimes committed by police officers; ➁ Direction for and supervision of special judicial police officers with respect to the investigation of crimes; ➂ Requests for appropriate application of statutes or regulations to a court; ➃ Direction for and supervision of the execution of judgments; ➄Proceedings with litigation or administrative litigation to which the State is a party or a participant, or direction for or supervision of such proceedings; ➅ Matters which fall under the authority of prosecutors under other statutes or regulations. In performing his or her duties, each prosecutor as a civil servant of all citizens shall protect the human rights of citizens, observe due process, and maintain political neutrality, and shall not abuse any authority vested in him or her, in accordance with the Constitution and statutes. \u0000For the progress of the criminal justice reform, focused on the reform of public prosecutors should make both status of representative of public interests and civil servant of all citizens in mind. The 2021 case of ‘public interest task force’ at DAEGU District Public prosecutors’ Office can be recommended as one of the best practice of the reform policy.","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120918925","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Scope Of The Obligation Of The Court’s Ex Officio Judgment.: Supreme Court Decision 2021Do9041 April 28, 2022","authors":"Jung-Sung Park","doi":"10.34222/kdps.2022.14.3.1","DOIUrl":"https://doi.org/10.34222/kdps.2022.14.3.1","url":null,"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. \u0000The 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.","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126877541","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}