(b) Prevention of loss and refund of loss incurred by telecommunications-based financial fraud;

Violation of Special Act

(c) Violation of Telecommunications Business Act;

D. Violation of the Electronic Financial Transactions Act

(e) Criminal organization;

(f) Activities of criminal organizations;

(g) Admission to criminal organizations;

1. The court shall dismiss an application for modification of a indictment to the effect that the modification of indictment is permitted only to the extent recognized as identical to the facts charged, and that there is an application for modification of indictment to the effect that the facts charged are added to the facts charged (Article 298(1) of the Criminal Procedure Act). The identity of the facts charged shall be maintained if the social facts, which form the basis of the facts, are the same in basic respect. In determining the identity of these basic facts, the Defendant’s act and social factual relations shall be based in mind with the function of the identity of the facts, and normative elements shall also be taken into account (see, e.g., Supreme Court en banc Decision 93Do2080, Mar. 22, 1994; 2012Do14097, Sept. 12, 2013).

2. The record reveals the following facts.

A. With respect to the fraud among the facts charged against the Defendants, the prosecutor indicted the Defendants for the crime that he/she conspireds with the victims on August 16, 2018 to give loans at a low interest rate from August 30, 2019, and that he/she acquired a total of KRW 1.86,283 million from victims on 141 occasions in total. (B) During the first instance trial proceedings, the prosecutor convicted them of the total amount of KRW 300,00,000 through 30,000,000,000 from the victims on 1.4 billion to January 30, 2019, and convicted them of the total amount of KRW 280,000,000 from the victims on 1.6 billion to 308,000,000,000,000 from the victims on 20,000 won in total.

D. As to the first instance judgment, both the prosecutor and the Defendants appealed from the prosecutor, and the prosecutor has organized the criminal organization for the purpose of scaming the applicable provisions of the Criminal Act in the process of the trial in the lower trial, and Defendant 1 was committed on August 2018, and around August 2018, Defendant 2 and Defendant 3 joined the criminal organization. The Defendants joined the criminal organization with the purpose of scaming the above crime organization, and the Defendants added the charges that “the Defendants engaged in activities of the criminal organization by acquiring the means of access, such as physical cards, or by opening a large volume of text delivery site, while performing their roles within the organization of the criminal organization” (hereinafter referred to as “criminal organization charges”), and the lower court reversed the conviction part of the first instance judgment, and convicted the Defendants in the first instance trial and all the charges charged.

3. Examining these facts in light of the legal principles as seen earlier, the facts charged in this case and the facts charged by a criminal organization are different from the facts charged, such as the date and time of the crime, the form of the act, and the conspiracy of the crimes, and there are significant differences in the nature of the crimes. Therefore, there is no identity as to the two facts charged. Thus, the modification of the indictment to add the facts charged in this case according to the modification of indictment procedure

Nevertheless, the lower court accepted the prosecutor’s application for changes in indictment to the effect that the charges of the above criminal organization are added and convicted of the charges of the criminal organization. In so determining, the lower court erred by misapprehending the identity of the facts charged and the legal principles on changes in indictment, thereby adversely affecting the conclusion

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the part of the judgment below convicting the Defendants is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Jeong-chul

Chief Justice Noh Jeong-hee

Justices Kim In-bok