[공인중개사의업무및부동산거래신고에관한법률위반][공2010하,1524]
[1] The scope of the prosecutor's amendment of indictment and the standard for determining the identity of the facts charged
[2] The case affirming the judgment below which held that even if the indictment is modified, the identity of the facts charged is recognized in the case where the prosecutor applied for modification of indictment from Gap to Eul to Eul of the brokerage commission for the lease transfer contract among the facts charged
[1] The prosecutor may add, delete, or modify facts charged or applicable provisions of Acts stated in the indictment with the permission of the court within the extent not impairing the identity of the facts charged. The identity of the facts charged is maintained if the social facts, which serve as the basis of the facts charged, are the same in the basic point of view. In determining the identity of such basic facts, the defendant's act and the social facts shall be based in mind of the function of the identity of the facts, and the normative elements shall also be considered.
[2] The case affirming the judgment below that the identity of the facts charged is recognized on the ground that even if the indictment was modified, it does not change the fact that the defendant has received brokerage fees exceeding the statutory upper limit after mediating the above contract at the time and time as stated in the facts charged and received brokerage fees exceeding the statutory upper limit.
[1] Article 298(1) of the Criminal Procedure Act / [2] Article 298(1) of the Criminal Procedure Act, Article 32(3), Article 33 subparag. 3, and Article 49(1) subparag. 10 of the former Licensed Real Estate Agents Act (amended by Act No. 8852 of Feb. 29, 2008)
[1] Supreme Court Decision 2003Do8153 Decided July 22, 2004, Supreme Court Decision 2005Do9678 Decided March 23, 2006 (Gong2006Sang, 751) Supreme Court Decision 2008Do8138 Decided January 30, 2009
Defendant
Defendant
Attorney Cha Gyeong-nam
Suwon District Court Decision 2009No1115 decided August 27, 2009
The appeal is dismissed.
The grounds of appeal are examined.
1. As to the assertion of misapprehension of the legal principles as to permission for changes in indictment
The prosecutor may add, delete, or modify the facts charged or the applicable provisions of Acts stated in the indictment with the permission of the court within the scope not impairing the identity of the facts charged. The identity of the facts charged is maintained if the social facts, which form the basis of the facts charged, are the same in the basic point of view. In determining the identity of these basic facts, the defendant's act and the 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 Supreme Court Decision 2003Do8153, Jul. 22, 2004).
According to the records, the prosecutor applied for the amendment of the indictment from “Non-Indicted 1” to “Non-Indicted 2,” and the court below permitted the amendment of the indictment. Even if the person who received the brokerage commission is changed as above, the fact that the defendant received brokerage commission exceeding the upper limit of the statutory commission after mediating the lease transfer contract at the time and time as stated in the facts charged is not changed. Thus, the facts charged before and after the amendment of the indictment are recognized as identical.
In the same purport, the court below's decision that permitted amendments to indictment is just, and there is no error in the misapprehension of legal principles as to amendments to indictment and permission.
2. As to the remaining grounds of appeal
The selection of evidence and fact-finding belong to the full power of the fact-finding court unless it is against logical and empirical rules. Examining the adopted evidence of the court below and the court of first instance maintained by the court below in light of the records, the court below is just in finding the defendant guilty of the crime in its reasoning, and there is no violation of the rules of evidence or incomplete hearing as otherwise alleged in the
3. Conclusion
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Young-ran (Presiding Justice)