Article 298(1) of the Criminal Procedure Act provides that "Modification of indictment" shall be amended.

Article 298 (1) of the Criminal Procedure Act provides that "the public prosecutor may add, withdraw or change facts charged or applicable provisions of Acts stated in the indictment with permission of the competent court, and the court shall grant permission to the extent that it does not impair the identity of the facts charged" means that the public prosecutor's application for changes of indictment must be permitted unless the identity of the facts charged is disturbed.

Defendant

Prosecutor

Seoul Criminal Court Decision 74No5512 delivered on February 5, 1975

The original judgment is reversed, and the case is remanded to the Panel Division of the Seoul Criminal Court.

The original facts charged by the prosecutor on the grounds of appeal by the prosecutor are first put to prosecution against the defendant at night, by theft of residence, and again sought permission to change the indictment in accordance with the written application for the change of indictment (preliminaryly, intrusion upon residence at night), but the court decided not to allow the indictment.

However, according to the provisions of Article 298 (1) of the Criminal Procedure Act, "the prosecutor may add, withdraw, or change charges or applicable provisions of Acts stated in the indictment with the permission of the court," and "the court shall permit them to the extent that the identity of the charges is not disturbed." Thus, the above provisions should be interpreted to mean that the court should permit it unless the public prosecutor's application for modification of indictment does harm the identity of the facts charged. According to the records, the defendant denies the criminal intent and opened gate in the victim's dwelling and opened gate in the victim's dwelling and made 1 meter away in the victim's house, and stated that the victim's dwelling was invaded by the victim's dwelling at night. Preliminary criminal facts are determined to be that the defendant intrudes the victim's dwelling at night, and therefore the defendant does not harm the identity of the facts charged. Thus, the court below's decision should have deliberated and made a decision after permitting the public prosecutor's application for modification of indictment, but it did not err in the misapprehension of legal principles as to the above facts charged or by misapprehending the purport of the above.

Therefore, the original judgment is reversed, and the case is remanded to the Panel Division of the Seoul Criminal Court. It is so decided as per Disposition by the assent of all participating Justices.

Justices Han-jin (Presiding Justice)