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Change of Applicable Clauses to the Criminal Case

  • DONG-A LAW REVIEW
  • 2016, (72), pp.43-65
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

CHOI BYUNG GAK 1

1동아대학교

Accredited

ABSTRACT

The prosecutor is obliged to file a bill of indictment containing the charged facts and the applicable clauses with a competent court(the Criminal Procedure Act §254 ①, ③). The charged facts shall be stated clearly by specifying date, place, and method of a crime(the Criminal Procedure Act §254 ④). And several applicable clauses may be stated preliminarily or alternatively(the Criminal Procedure Act §254 ⑤). The prosecutor may add, delete, or change the charged facts or the applicable clauses in a bill of indictment only when the court recognizes the identity of the charged facts remains consistent(the Criminal Procedure Act §298 ①). The court may request the prosecutor to change the contents in a bill of indictment(the Criminal Procedure Act §298 ②). Although the court, not the prosecutor, has a finial authority to determine the clauses applied to the charged facts, it is necessary to have a process of changing a bill of indictment especially when it burdens the defendant substantially. According to the recent decision of the supreme court, the prosecutor has a discretion to select the clause between the Violent Offences Act §2 ① and the Criminal Act §351 in punishing the habitual extortion. And the court may not apply the latter without a process of changing a bill of indictment. But this article shows that the former prescribes harsher penalty than the latter based on actually same offence, so it is unconstitutional. Futhermore the court may apply soft clause on one’s own initiative because it is more beneficial to the defendant.

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