공소장일본주의

Abstract

This article concerns the decision of the Supreme Court en banc rendered on October 22, 2009, 2009do7436, regarding the principle of indictment without surplusage. The decision declared that the principle of indictment without surplusage is a procedural device which, at the stage of the institution of a criminal prosecution, aims to realize the doctrine of presumption of innocence, the adversarial system of law, direct examination, prosecution centered on public trial and adjudication based on evidence laid down by the Constitution, thereby establishing the principle of indictment without surplusage in our Rules of Criminal Procedure as that of utmost significance. Furthermore, the decision is the first one to clarify with respect to a charge brought in violation of the principle of indictment without surplusage that as a rule a dismissal of an indictment with surplusage shall result because in such a case the procedure would be null and void in breach of a statutory law. Nonetheless, the Court ensured that where a defendant failed to object as to the issue of surplusage and discovery closed with the continuance of trial absent such objection whereby a firm belief is likely to have been formed on the part of the judge, the defendant may not at this point aptly claim the violation of the principle of indictment without surplusage. However, even as for the ruling, the criteria to apply in the determination of an alleged violation of the principle of indictment without surplusage are general and abstract. In view of the fact that the decision rests silent on the specifics of the authority for a court to exercise in commanding a trial, it is expected that the criteria and specifics in the application of the principle would be concretized through practice henceforth. Primarily, we shall endeavor to make the principle of indictment without surplusage fully realized in our criminal procedure as the decision proclaims. When a prosecutor brings a charge, he or she, as the party initiating a criminal proceeding, shall not contravene the principle of indictment without surplusage by attaching to indictment documents or items or otherwise quoting the contents of certain documents which may cause premature judgment on the part of the court. The court, when faced with the filing of such indictment, shall examine the issue at the early stage of a criminal proceeding in order to determine whether there exists a violation of the principle of indictment without surplusage and prevent the trial from proceeding with an illegal institution of prosecution. This decision may serve as a momentum to confirm that the principle of indictment without surplusage is a principle of paramount importance to abide by in the initiation of criminal prosecution and to embark upon an active debate on the principle in general.