항소이유서에서 주장되지 않은 내용으로의 공소장 변경과 법원의 직권조사사항 = A critical approach to the feasibility of prosecutor’s modification of bill of indictment where the prosecution appealed on the ground only that the degree of punishment is too lenient and in that particular situation the extent of appellate court’s adjudication

다국어 초록 (Multilingual Abstract)

In a criminal case, where a party, either defendant or prosecution, could not accept court's ruling, one must formally ask reconsideration to appellate court. He must submit a petition which explains those rationales for appeal, within 20 days as of the date he received notification from the appellate court. In general, the extent of appellate court's adjudication is confined also to those raised factual or legal issues. However, Act on Criminal Procedure lend itself to certain exceptions to those specific issues that appellate - court must adjudicate regardless of any party’s explicit petition.
These exceptions are to be construed narrowly by its own nature. If the party fails to submit the petition within statutory period, the law provides, the appellate court should deny review for the simple reason that he failed to do so. This brings about fatal result. There is no doubt that when a party do not appeal, the court’s ruling becomes incontestable upon the passage of 7-day period of appeal, regardless of the gravity of error, the seriousness of fault, misinterpretation or misconception implicated there. By the same token, where the party failed to put forward a petition within 20 days, those panoply of errors, if at all, underlying in lower court’s decision may not be argued, and consequently becomes incontestable. Accordingly, such errors as the lower court has misinterpreted a specific statute or misconceived factual circumstances do not warrant the appellate court’s especial review. After all, the extent of appellate court’s especial review should be constructed and clarified with the accumulation of diverse cases.
Mr. Justice Brandeis once observed:
“Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fail to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that, in the administration of the criminal law, the end justifies the means . . . would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.” Olmstead v. United States, 277 U. S. 438, 485 (1928) (dissenting opinion).
I would wholeheartedly reiterate above perspicacious wisdom that our Supreme Court is the potent, the omnipresent teacher. For good or for ill, it teaches the whole constituents by its example. In order to conserve our civilization, we must make our strenuous efforts to ameliorate the quality of judicial service. Learning a lesson from mistake and then coming up with an improved scheme to avert the same bêtise - that’s the beauty of our civilization.