Where a court recognizes a minor criminal facts included in the criminal facts prosecuted within the scope consistent with the facts charged and deems that there is no concern over causing substantial disadvantage to the defendant's exercise of his/her right to defend, in light of the progress of trial, it may, ex officio, recognize other facts prosecuted than those stated in the indictment, even if the indictment has not been modified.

(1) In light of the aforementioned legal principles, the crime of violation of the Punishment of Violences, etc. by carrying a deadly weapon is included in the facts charged in violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Special Rape) which the lower court found guilty, and the first instance court through the trial process was sufficiently examined. Thus, even if the Defendant is punished as such offense, it cannot be deemed that there is a concern that the punishment of the Defendant may cause substantial disadvantages to the exercise of his/her right to defense.

Therefore, the lower court did not err by misapprehending the legal doctrine on the essential part of the Amendments to Bill of Indictment or the principle of incompetence as alleged in the grounds of appeal.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.