[2] In a case where the prosecutor initially brought an indictment for violation of the Act on the Control of Narcotics, Etc. by stating that "the defendant delivered approximately 0.3g philopon to Gap," and then filed an application for the amendment of a bill of indictment to add the criminal facts in favor of fraud that "the defendant committed the defendant by deceiving Gap et al. to seek philopon, by deceiving Gap et al.", the case holding that the judgment below which admitted the amendment of a bill of indictment was erroneous in the misapprehension of legal principles since the above two criminal facts cannot be deemed to be identical with the basic facts.

Article 298(1) of the Criminal Procedure Act provides, “The public prosecutor may add, delete, or modify facts charged or applicable provisions of Acts stated in the indictment with permission of the court. In this case, the court shall grant permission to the extent that the identity of the facts charged is not undermined.” The above provision purports that the court shall grant permission unless the public prosecutor’s application for changes in indictment does harm the identity of the facts charged. The identity of the facts charged is maintained as it is if the social factual relations, which form the basis of the facts, are the same in basic terms. However, 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 considered (see Supreme Court en banc Decision 93Do2080, Mar. 22, 1994; Supreme Court Decision 98Do1438, May 14, 199, etc.).

According to the records, the prosecutor initially prosecuted the defendant on October 2008 that "the defendant issued approximately 0.3 g of psychotropic drugs to non-indicted 1, a psychotropic drug, within a vehicle parked on the road near the Mannam City Mayor". On October 15, 2010, the prosecutor found the defendant guilty of the charges of this case on the ground that "the defendant did not have the intention or ability to seek 10 g of philopon, the defendant was able to receive 10 g of philopon money in the name of philopon money, although he did not have the intention or ability to use philopon, the defendant was able to receive 10 g of 10 g of philopon money from Non-indicted 1 on the place unclaimed on October 2008 to 3.10 g of philopon, and the defendant was issued with 100 gopon on the same day and 201 gopon."

In light of the aforementioned legal principles and records, the criminal facts of violation of the Act on the Control of Narcotics, Etc., which are the initial facts charged, and the criminal facts of fraud added as preliminary by the prosecutor's modification of the indictment, are significantly different from the contents of the crime, such as means and methods, the form of the act, and the legal benefits from damage, and the nature of the crime are also different. Thus, the basic facts

Therefore, the court below found the defendant guilty of the conjunctive criminal facts added as a result of the modification of the indictment, although it cannot be viewed as within the scope of the identity of the facts charged. The court below erred by misapprehending the legal principles on the identity of the facts charged or the modification of the indictment, and the grounds for appeal pointing this out are with merit.

Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the part concerning the conjunctive facts charged in the judgment below cannot be reversed, and the part concerning the primary facts charged in the same body can be reversed. Therefore, the judgment of the court below shall be reversed and the case shall be remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent

Justices Lee Sang-hoon (Presiding Justice)