2014Do6320 Bodiis

A person shall be appointed.

Prosecutor

Attorney B (Korean National Assembly)

Busan District Court Decision 2013No1941 Decided May 1, 2014

May 29, 2015

The judgment below is reversed, and the case is remanded to Busan District Court Panel Division.

The grounds of appeal are examined.

1. The summary of the facts charged in the instant case is as follows: (a) the Defendant, who is the lessee of the building owned by 30 on July 25, 2012, and the victim, who is the lessee of the building owned by 30 on the part of the common toilet on the first floor of the said building, was under dispute over the repair cost of the toilet on the left side part of the victim, and was under pressured pressured 12 on the part of the victim, thereby damaging the victim over the floor.

2. According to the reasoning of the lower judgment, the lower court held that the date and time of crime regarding the facts charged in the instant case was July 2012.

25. 16: From 30 " to 25: 17:0 ", July 25, 2012, 17:00", the court rejected the prosecutor's application for approval of changes in indictment, and based on the circumstances in its reasoning, it is difficult to deem that the defendant exercised the force of force on July 25, 2012 to 16:30 "," the court of first instance reversed the conviction, and acquitted the defendant on the above facts charged.

3. However, it is difficult to accept the judgment of the court below that the court below rejected the prosecutor's application for changes in indictment and the above acquittal for the following reasons.

A. (1) The identity of the facts charged shall be determined on an individual basis on the same factual basis as the social factual basis of the facts. In the event that the first facts charged and the modified facts charged differ only on the date and time, if there are circumstances to deem that the two facts charged are compatible in light of the nature of the case, there is a risk of different social facts, and thus, the basic facts cannot be deemed identical. However, if one of the facts charged is established, if the two are closely related to one another to the extent that the other cannot be established, the basic facts of the two shall be identical (Supreme Court Decision 2010Da10100).

6. (2) According to the records, the above application for the amendment of a bill of indictment is merely a specification of the defendant's criminal act and a different date and time. Even according to the contents of the facts charged before and after the amendment of a bill of indictment, the place, method, part, recovery, and the victim causing bodily injury are the same. Thus, if one of the crimes committed before and after the amendment of a bill of indictment is constituted as a crime, the other is not likely to be constituted as a crime, and the two facts charged are incompatible.

Therefore, the court below should have accepted the prosecutor's application for changes in indictment, but the court below rejected it, which erred by misapprehending the legal principles on the identity of the facts charged or changes in indictment.

B. In addition, the following circumstances revealed by the record, namely, ① although the statement of the victim was exaggeratedly made with C, there is a consistent statement as to the defendant's injury, ② there is a difference between the victim's and C's statement about the situation at which the defendant prices the victim, but ③ at least D's statement is consistent with the part that the defendant caused the victim by his arms, ③ it is not consistent. However, as a whole, it can be understood that the defendant's elbow was fit for the body of the victim, and it is difficult to find that D's statement was treated as a scarcity and scarcity for the victim's injury because it was extremely difficult to say that the victim was exposed to the victim's scarcity because of the victim's exposure beyond 1's chest and scarcity was found to have been partially scarcityd with the victim's statement of this case. However, according to the prosecutor's opinion that the victim was found to have been found to have been scarfed with the victim's own body of this case.

Nevertheless, the judgment of the court below which acquitted the defendant on the grounds stated in its holding is beyond the limit of the principle of free evaluation of evidence against logical and empirical rules.

4. 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 Band Kim Shin-sik

Note 1 Justice Min Il-young 1

Justices Park Young-young

Justices Kim Jong-il