Changes in Indictment: When the defendant was charged with different crime than they had done

When a person gets arrested, police officers and prosecutors investigate whether they had actually committed a crime. When the prosecutor is quite convinced that the person is guilty, they “indict” the person. “Indictment” is an official accusation that the person has committed a crime. Once indicted, the person becomes a “defendant” and sent to the criminal court to receive a trial.

If the indictment is entirely wrong, like, the defendant got indicted with a murder but they actually did nothing, they would be declared “not guilty” and acquitted. But what if the indictment is only slightly wrong?

For instance, let’s say that a man injured the victim with a knife, and he got indicted with a robbery. But in reality, he had no intention to rob the victim; he only intended to injure the victim from his personal grudge. So, he is innocent for the charge of the robbery, but instead guilty of inflicting injury. This is a serious situation, because the sentence for robbery is “imprisonment for at least three years” (Criminal Act, Article 333) while the sentence for inflicting injury is “imprisonment for not more than seven years or a fine not exceeding ten million won” (Criminal Act, Article 257(1)). The sentence for robbery is much more severe.

Now then, how should we solve this situation?

Should the court declare the defendant not guilty for robbery, but instead guilty for inflicting injury? No, impossible. Indictment issued by the prosecutor also works as a limit for criminal trial; the court can only judge about the crime written in the bill of indictment, and nothing else. So, in this case, the court can only judge whether the defendant committed robbery, and nothing else.

Should the court declare the defendant not guilty for robbery, and then the prosecutor should indict him again, this time with inflicting injury? But then the trial should be started all over again from the beginning, which would be a terrible waste of time and energy for both the court and the defendant.

This is where “changes in indictment” comes in. Let us see what it says on Criminal Procedure Act, Article 298(1):

Article 298 (Changes in Indictment)

1. 1. 1. The public prosecutor may, with permission of the competent court, add, delete, or change charges or applicable provisions of Acts stated in the indictment. In this case, the identity of the charges shall not be disturbed.

As you can see, the prosecutor can change the charge with the permission of the court, as long as the “identity of the charges” is not disturbed. This means the prosecutor cannot change the charge into something totally different, such as changing the indictment with embezzlement into rape or something.

Please let us introduce SLG’s recent success related to this subject. Our client was indicted with “aiding and abetting fraud.” She was in charge of receiving money from the victim into her bank account, withdrawing the money and delivering it to the principal offender. But the crime was unsuccessful. Although she DID receive the money from the victim, but she couldn’t withdraw the money, nor deliver it to the principal offender, because her bank account was immediately suspended from the victim’s report.

On the day of the hearing, SLG lawyers pointed out to the court that our client couldn’t complete the intended crime, which means she was innocent of “aiding and abetting fraud,” but guilty of “aiding and abetting attempted fraud.” The indictment was wrong and should be changed. The judge accepted our argument, and the prosecutor had no choice but to change the indictment into “aiding and abetting attempted fraud.” This was a huge success because the punishment for attempted crime usually gets mitigated by half than that of consummated crime.

If you ever feel that you are wrongly charged, not only when you are completely innocent but only partially innocent, don’t forget SLG can be there for you.