[1] In a case where the prosecutor’s application for modification of indictment does not harm the identity of the facts charged, whether the court should permit it (affirmative), and the method of determining the identity of the facts charged

[2] Whether a case constitutes grounds for reversal where one of the items to be specified in the grounds for reversal is omitted when a judgment of conviction is rendered (affirmative)

[1] Article 298(1) of the Criminal Procedure Act / [2] Article 323(1) and Article 383 subparag. 1 of the Criminal Procedure Act

[1] Supreme Court en banc Decision 93Do2080 Decided March 22, 1994 (Gong1994Sang, 1368), Supreme Court Decision 2010Do16659 Decided April 13, 2012 / [2] Supreme Court Decision 2009Do3505 Decided June 25, 2009 (Gong2009Ha, 1265), Supreme Court Decision 2010Do9151 Decided October 14, 2010, Supreme Court Decision 2013Do13673 Decided June 26, 2014

Defendant

Defendant

Attorney Park Sang-woo

Seoul Central District Court Decision 2016No3164 Decided December 23, 2016

The judgment below is reversed, and the case is remanded to the Seoul Central District Court.

The grounds of appeal are examined.

1. Judgment on the grounds of appeal

Article 298(1) of the Criminal Procedure Act provides, “The public prosecutor may add, delete, or modify facts charged or applicable provisions of Acts stated in the indictment with permission of the competent court. In this case, the court shall grant permission to the extent that the identity of the facts charged is not undermined.” Accordingly, the court shall grant permission to the public prosecutor unless the public prosecutor’s application for changes of indictment does not impair the identity of the facts charged. The identity of the facts charged is maintained as it is in the basic point of view that social factual relations, which form the basis of the facts charged, are the same in the basic point of view, but when determining the identity of these basic facts, it shall be based on the defendant’s act and social factual relations, and shall also consider normative elements (see Supreme Court en banc Decision 93Do2080 delivered on March 22,

According to the records, the prosecutor initially held that “the defendant is the representative of the non-indicted 1 stock company from July 26, 2012 to March 31, 2013, who is engaged in wholesale and retail business using three full-time workers. In the event that an employee retires, the employer shall pay all money and valuables, such as wages, within 14 days from the date of retirement, unless there is an agreement on the extension of the due date. The defendant did not pay the above place of business as a summary order within 14 days from the date of retirement to June 26, 2013 of the worker non-indicted 2-2, who worked between July 26, 2012 and June 26, 2013; the amount of KRW 3.65 million on January 26, 2013; the amount of KRW 3.650,000 on February 3, 2013; and the amount of KRW 150,150,000 from the date of retirement.”

However, at the lower court, the prosecutor applied for the amendment of the indictment to the effect that “The Defendant is the representative of Nonindicted Incorporated Co. 1 and runs wholesale and retail business using three full-time workers from July 26, 2012 to March 31, 2013. The wages must be paid at least once a month. Nevertheless, the Defendant applied for the amendment of the indictment to the indictment on the date of the trial on July 26, 2012 by Nonindicted Co. 2-2, who worked between July 26, 2012 and June 26, 2013, the amount of KRW 60,650,000 for wages on January 26, 2013, the amount of KRW 3.65,50,000 for wages on February 3, 2013, and KRW 1,150,000 on March 3, 2013.”

The facts charged before and after the amendment of the indictment are all the same for the same worker, and there is a difference between the legal assessment as to whether the defendant violated the duty to liquidate money and valuables after retirement of the worker and whether the defendant violated the duty to pay wages every month. Furthermore, the nature of the crime and the legal benefits from damage are similar. Therefore, even if the circumstances pointed out in the grounds of appeal are considered, the basic facts are identical.

In the same purport, the judgment of the court below that permitted the amendment of the indictment since the facts charged before and after the amendment of the indictment of this case are recognized as identical, is just, and there is no error in misapprehension

2. Ex officio determination

A. According to Article 323(1) of the Criminal Procedure Act, a judgment of conviction must clearly state the facts constituting a crime, the summary of evidence, and the application of the Act and subordinate statutes. In a case where any one of the grounds of the judgment was omitted while a judgment of conviction was rendered, it constitutes a violation of the Act that affected the judgment under Article 383 subparag. 1 of the Criminal Procedure Act, which constitutes grounds for reversal (see, e.g., Supreme Court Decisions 2009Do3505, Jun. 25, 2009; 2010Do9151, Oct. 14, 2010).

B. According to the reasoning of the judgment below, the court below reversed the judgment of the court of first instance ex officio on the grounds of the prosecutor’s modification of indictment, and sentenced the defendant guilty, and only stated the facts constituting the crime and the summary of evidence in the reasoning of the judgment, but omitted the application of the statutes. In light of the above legal principles, the

3. Conclusion

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 Park Poe-young (Presiding Justice)