형사소송법 제254조 제5항의 ‘수개의 범죄사실’의 해석과 범죄사실과 적용법조의 예비적 또는 택일적 기재에 관한 체계적 이해

The preliminary and alternative description of facts in a complaint is useful because it is necessary to have flexibility in the description method of the indictment in order to prevent a not-guilty verdict due to the prosecutor’s insufficient formation of evidence on the facts in a complaint, difficulty in determining the legal structure, or other reasons. However, Article 254, Paragraph 5 of the Criminal Procedure Act(=CPA), which stipulates preliminary and alternative description, only stipulates that “several criminal facts and applicable laws may be described preliminarily or alternatively,” and does not contain any content indicating that this is permitted within the scope of the identity of facts in a complaint or is possible outside the identity of facts in a complaint. For this reason, there is a conflict between the position that preliminary and alternative description is possible only within the scope of the identity of facts in a complaint and the position that it is possible not only within the identity of facts in a complaint but also outside the identity of facts in a complaint. Of course, the former is the majority opinion and the latter is the case law opinion and the minority opinion. The case law opinion and minority argue that due to Article 254, Paragraph 5 of CPA not requiring the identity of the facts in the indictment for the preliminary and alternative descriptions, there is no need to limit the preliminary and alternative descriptions to the scope of the identity of the facts in the indictment. Of course, if we only look at the content of Article 254, Paragraph 5 of CPA, the case law opinion and minority seem reasonable. However, the case law opinion and minority contradict the amendment of the indictment under Article 298, Paragraph 1 of CPA, which requires the identity of the facts in the indictment. This is because the amendment of the indictment requires the ‘identity of the facts in the indictment,’ whereas the preliminary and alternative description under Article 254, Paragraph 5 of CAP does not require the ‘identity of the facts in the indictment.’ This is also the result of a ‘formal’ interpretation of Article 254, Paragraph 5 and Article 298, Paragraph 1 of CPA. This means that whether or not the identity of the facts in the indictment is required for the preliminary or alternative description cannot be determined by a ‘formal’ interpretation of Article 254 Paragraph 5 and Article 298 Paragraph 1 of CPA. Looking at it another way, this also means that whether or not the identity of the facts in the indictment is required for the preliminary or alternative description can only be determined through a ‘systematic’ interpretation of the purpose of CPA and Article 254 Paragraph 5 and Article 298 Paragraph 1 of CPA. Basically, the solution is to align Article 298 Paragraph 1 with Article 254 Paragraph 5, or conversely, to align Article 254 Paragraph 5 with Article 298 Paragraph 1. Which of these is chosen is not a matter of choice, but should be decided in accordance with the purpose and system of CPA and the ideology of Article 298, Paragraph 1 and Article 254, Paragraph 5 of CPA. The amendment of the indictment under Article 298, Paragraph 1 of CPA is very useful and necessary in that it prevents a not guilty verdict by amending the indictment when it is discovered during the trial that it was incorrect even though it was thought to be a proper indictment at the time of filing. However, if this is broadly acknowledged, it will cause many difficulties in the defendant’s defense activities. Therefore, Article 298, Paragraph 1 of CPA explicitly states the ‘identity of facts in the indictment’ as a requirement for the amendment of the indictment in order to limit the abuse of the amendment of the indictment. For this reason, the identity of facts in the indictment cannot be abandoned in any case when amending the indictment. Accordingly, even if Article 254, Paragraph 5 of CPA does not specifically state the ‘identity of facts in the indictment’ as a requirement for the provisional and alternative description, it is logical and systematic to interpret that the ‘identity of facts in the indictment’ is required for the preliminary and alternative description. And if it is considered that the identity of facts in the indictment is not required for the provisional and alternative description, that is, according to the positive theory, several criminal facts in a concurrent crime relationship are not punished as concurrent crimes, but only one of the crimes described in the preliminary or alternative description is punished, which causes the problem of the provision of concurrent crimes in the criminal law becoming a formality. Considering these things, it is reasonable and systematic to view the ‘several criminal facts’ in Article 254, Paragraph 5 of CPA as a legislative error.