작위와 부작위 간 공소장변경의 한계 및 필요성 연구

The prosecutor must specify the facts when prosecuting, and can amend the Bill of indictment only when the identity of the facts charged is not disturbed. Regarding the amendments to bill of indictment, there have been many researches about the meaning of the ‘identity of the facts charged is not disturbed’ and the necessity of the amendments to bill of indictment, however, there was very little research about the amendments to bill of indictment between commission and omission. Regarding the amendments to bill of indictment between commission and omission, the distinction between the commission and omission is a problem. The Supreme Court has ruled that when distinguishing between the commission and omission, it is the principle that presume as the commission. However, the commission and omission should be viewed as matters of legal evaluation, not acts. Then, is it possible to amend the bill of indictment if the prosecutor change the facts of commission to omission? The amendments to bill of indictment can only be made if the basic facts are same, so in this case, prosecutors can amend the bill of indictments. The more important question is whether or not to amend the bill of indictment when the court admits the criminal fact by omission. The Supreme Court has ruled that it is not necessary to amend the bill of indictment if it admits the reduction or makes a different legal evaluation. The Seoul High Court ruled that if the defendant’s defense is not impaired, is is okay to accept the act as a omission without amend the bill. however, given the criminal meaning of omissions and the additional requirements for omissions, recognition of facts as omissions without the amendments to bill of indictment is not permissible in terms of the rule of law.