[2] The case holding that in case where the prosecutor first filed a prosecution against the crime that "the defendant purchased the phiphone volume from a person who was not on his/her name abroad on May 11, 2018, and then imported the phiphone by entering an airport around 07:0-08:00 on May 13, 2018, and then on May 13, 2018, he/she applied for changes in the indictment to the effect that "the defendant purchased the phiphone amount from a person who was not on his/her name abroad, and then imported the phiphone amount by entering the airport around 07:0-00:0 on May 13, 2018, the defendant purchased the phiphone amount within the vehicle A on April 16, 2018, and around 14:52 on May 13, 2018, and then approved the changes in the indictment to the indictment, the court below found the defendant guilty as to the violation of the Act on the Management of Narcotics, Etc. (16.).

1. Article 298(1) of the Criminal Procedure Act provides, “The prosecutor may add, delete, or change charges or applicable provisions of Acts stated in the indictment with the permission of the court. In this case, the court shall permit the application to the extent that the identity of the charges is not undermined.” The purport of the above provision is that the court must permit the application unless the application for changes in indictment by the prosecutor infringes on the identity of the charges. The identity of the charges is maintained if the social factual relations, which form the basis of the facts, are the same in basic respect. However, when determining the identity of these basic factual relations, the defendant’s act and social factual relations shall be based in consideration of the function of the identity of the facts (see Supreme Court en banc Decision 93Do2080, Mar. 22, 1994; Supreme Court Decision 98Do1438, May 14, 199, etc.).

2. According to the record, the following circumstances are acknowledged.

A. The prosecutor initially brought a public prosecution against the crime that “the Defendant purchased the philophones from Vietnam on May 11, 2018 at the sea located in Vietnam ○○○○, from Vietnam, to USD 20 U.S. dollars, and then imported the philophones by means of entering the philophones through the Incheon International Airport of Jung-gu Incheon, Jung-gu, Incheon, on May 13, 2018, without inserting the philophones purchased as above into his own philograms.”

B. On the date of the second trial of the lower court on January 8, 2020, the prosecutor: (a) transferred KRW 700,000 to Nonindicted Party 2’s deposit account on April 16, 2018; and (b) purchased the instant indictment by taking the amount of 1cc-day non-indicted 1’s instant bill of indictment from Nonindicted Party 1, which was parked in Seoul ( Address omitted), on the same day; (b) around May 13, 2018, the Defendant transferred KRW 70,00 to Nonindicted Party 2 deposit account as indicated in the foregoing paragraph (1), and purchased the instant bill of indictment after having received the application for changes in the indictment from Nonindicted Party 1’s bill of indictment from the Defendant’s vehicle parked in the same place as indicated in the foregoing paragraph on the same day.

C. The lower court acknowledged the Defendant guilty of the modified facts charged after permitting it on the same date.

3. Examining the record in light of the aforementioned legal principles and the record, the crime of violation of the Act on the Control of Narcotics, Etc. from the Import of Handphones, which was the initial charge, and the crime of violation of the Act on the Control of Narcotics, Etc. from the Purchase of Handphones, on April 16, 2018, among the criminal facts changed according to the prosecutor’s amendment of indictment, (i) the crime of violation of the Act on the Management of Narcotics, etc. from the Purchase of Handphones, which was the initial charge

Therefore, the court below erred by misapprehending the identity of the facts charged or the legal principles on the amendment of the indictment although it cannot be deemed that the application for the amendment of the indictment of this case is within the scope of the identity of the facts charged. The ground of appeal assigning this error is with merit.

4. Therefore, of the lower judgment, the part on violation of the Act on the Control of Narcotics, Etc. by Purchasing Handphones on April 16, 2018 among the judgment below should be reversed. Since the lower court rendered a single sentence on the ground that the part and the remaining guilty part are concurrent crimes under the former part of Article 37 of the Criminal Act, the lower judgment should be reversed in its entirety.

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court 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 Lee Dong-won (Presiding Justice)