[2] The case holding that the identity of the facts charged cannot be recognized on the ground that basic facts are not identical in the case where an application for modification of indictment was filed in addition to the facts charged, such as violation of the Punishment of Violences, etc. Act (a collective, deadly weapon, etc.

[2] The case holding that the identity of the facts charged cannot be recognized on the ground that the victim is identical to the place of the crime, but the content of the crime, such as the means and method, and the form of the act, and the nature of the crime are significantly different, in a case where an application for modification of the indictment was filed by adding the facts charged, such as violation of the Punishment of Violences, etc. Act (a collective action, deadly weapon, etc.

The court below reversed the judgment of the court of first instance that found the defendant guilty of each part of the facts charged on the grounds that the assault committed on February 25, 2004 among the facts charged in this case and each injury committed by the victim on March 22, 2004 and September 29, 2004 are consistent with each of the facts charged in this case, each of the statements and the written diagnosis of injury by the victim on September 29, 2004 are insufficient to believe or be admitted as evidence in light of the circumstances as stated in its reasoning, and there is no other evidence to recognize it. In light of the records, the court below's decision is just and acceptable, and there is no violation of the rules of evidence as alleged in the grounds

2. As to the defendant's appeal

A. As to the assertion against the rules of evidence

Examining the evidence adopted by the court below in light of the records, the court below is just and justified in finding that the defendant committed an assault against the victim on February 18, 2004, and the victim on March 7, 2006 and suffered an injury requiring about four weeks of medical treatment by pushing the victim on the wall, and the victim on March 7, 2006, and there is no violation of the rules of evidence as alleged in the grounds of appeal.

B. As to the assertion of misapprehension of the legal principle as to adultery

Article 2 of the Criminal Act provides that "this Act shall apply to nationals and foreigners who have committed a crime within the territory of the Republic of Korea," adopting the territorial principle as to the scope of application of the Criminal Act. As long as a person who has a spouse within the territory of the Republic of Korea has a adultery, even if the spouse of a person who committed a crime of adultery is a foreigner with the nationality of a State that does not punish the crime of adultery, the establishment of the crime of adultery by the defendant does not affect, and the foreigner's spouse has the right to file a complaint pursuant to the provisions of the

Meanwhile, in a case where the parties to a marriage have no intention to continue the marriage and there exists a mutual agreement with the intention of divorce, even if the marital relationship remains legally, the declaration of intention corresponding to the end of the agreement, which is the prior consent to the adultery, shall be deemed to be included in the agreement. However, in the absence of such agreement, even if the intention of divorce is expressed by both parties on the interim, interim, and conditional basis, it shall not be deemed to fall under the case of the cross-end use (see Supreme Court Decision 2000Do868, Jul. 7, 2000, etc.).

Comprehensively taking account of the adopted evidence, the court below stated that the defendant filed a lawsuit for divorce against the victim at the Seoul Family Court on July 14, 2005, the victim brought a counterclaim against the defendant for divorce and division of property at the same court on September 30, 2005, and the victim expressed his intention to divorce against the family affairs investigator ordered by the Seoul Family Court on February 21, 2006. The defendant was at home around September 28, 2004, and he was at home around October 25, 2005. However, even if the victim had no intention to divorce but to have a marital relationship, it is difficult to view that the defendant had no intention to divorce, and that there was no other legitimate reason to believe that it is difficult for the defendant to take advantage of the legal principles as to the prohibition of disposal of the defendant's property, even if the victim had no intention to divorce with the defendant, and that the defendant did not have any other right to request a divorce, even if he did not wish to do so.

3. The limit of Amendments to Bill of Indictment shall be regarded ex officio.

The modification of the indictment shall be permitted only to the extent that the identity of the facts charged is recognized, and where there is an application for modification of the indictment to the effect that the facts charged are added as the facts charged, the court shall dismiss the application for modification (Article 298(1) of the Criminal Procedure Act). The identity of the facts charged is maintained if the social facts, which form the basis of the facts, are the same in the basic point of view. However, in determining the identity of these basic facts, it shall be based on the defendant's act and social factual relations with the function of the identity of the facts, and shall also take into account normative elements (see, e.g., Supreme Court en banc Decision 93Do2080, Mar. 22, 1994; 98Do1438, May 14, 1999).

In light of the record, as to the injury done on March 22, 2004, the prosecutor prosecuted the defendant on the crime that "at the house of the defendant at around 22:00 on March 22, 2004, he/she saw that he/she had a dispute with the victim, and thereby, he/she had a chest face with about 2 weeks of treatment for the victim several times," but this part of the facts charged to the court below on January 16, 2008, "it was found that the defendant applied to the court below for an additional injury to the victim on March 22, 2004, at the house of the defendant at around 22:0,000, he/she continued to be acquitted of the crime that "at the same time, he/she would have an additional provision to the victim, such as an act of violence, etc., and at the same time, he/she would have an additional provision to the victim, such as an act of violence, etc., with the victim's appearance and the part of the bill of indictment."

However, although the initial criminal facts and the criminal facts added by the prosecutor upon filing an application for changes in the indictment against the defendant are closely linked to the victim and the same place of the crime, the contents and form of the crime, such as means and methods, are different, and the nature of the crime is significantly different, it cannot be said that the basic facts are identical.

Therefore, the judgment of the court below on the changed criminal facts following the permission of the application for changes in the indictment of this case is unlawful. Thus, the court below should have rendered a decision of dismissal on the application for changes in the indictment of this case or cancelled the permission decision and rendered a judgment on the original criminal facts, but it should have tried on the additional criminal facts whose identity is not recognized as identical to the original criminal facts. Thus, the court below erred by misapprehending the legal principles on the identity of the facts charged or the changes in the indictment of this case, which affected

4. Scope of reversal

Therefore, among the guilty parts of the judgment below, the part on the charge of violation of the Punishment of Violence, etc. by Intimidation by Carrying with a deadly weapon (a collective, deadly weapon, etc.) shall be reversed, and the appeal by the defendant on the remaining guilty portion is without merit, but the court below considered each of the charges as concurrent crimes under the former part of Article 37 of the Criminal Act and the remaining guilty portion rejected by the defendant as the concurrent crimes under the former part of Article 37 of the Criminal Act and sentenced the defendant to

5. Conclusion

Therefore, the guilty part of the judgment of the court below is reversed, and that part of the case is remanded to the court below for a new trial and determination. The prosecutor's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeon Soo-ahn (Presiding Justice)