Where there is no procedure to change the facts charged after instituting a public prosecution on the facts of injury resulting from rape as the primary facts charged, and where there is an error of law committed by indecent act by compulsion in spite of no procedure to change the facts charged.

In a case where the Defendant indicted the fact that he had raped “A” on the original charge and prosecuted the facts of injury to the said person in the preliminary charge, the lower court, despite no application for change of the facts charged by the prosecutor, did not err by misapprehending the legal principles as to the act of injury resulting from indecent act by compulsion, which the lower court committed the crime of injury resulting from indecent act by compulsion.

Article 298 of the Criminal Procedure Act, Article 254(3) of the Criminal Procedure Act, Article 254(5) of the Criminal Procedure Act

68Do995 decided September 19, 1968

Defendant

Seoul Criminal District Court Decision 68No99 delivered on May 21, 1968, Seoul High Court Decision 68No99 delivered on May 21, 1968

We reverse the original judgment.

The case is remanded to Seoul High Court.

The grounds of appeal No. 1 as to the defendant's attorney summons shall be examined.

Even if the identity of the facts charged is acknowledged, the prosecutor changed his argument and permitted it by the court, and the changed facts of the cause of the prosecution are subject to the court's adjudication under Article 298 of the Criminal Procedure Act (see Supreme Court Decision 68Do995, Sept. 19, 1968). According to the records, the prosecutor indicted Nonindicted 1 of the original facts charged (Article 297 and Article 301 of the Criminal Act), and indicted him of the facts of injury to the same person (Article 2 (2) of the Punishment of Violences, etc. Act), and the prosecutor first applied for the change of the facts of injury resulting from indecent act by force (Articles 298 and 301 of the Criminal Act). However, the court below erred in the misapprehension of the facts charged, which did not constitute a crime of indecent act by force.

Therefore, the facts charged of this case against the defendant are remanded to the court below for a new trial. It is so decided as per Disposition by the assent of all Justices who participated in the trial under Articles 390 and 397 of the Criminal Procedure Act.

[Judgment of the Supreme Court (Presiding Judge) Na-dong, Ka-dong, and Lee Jong-young