Partial withdrawal of facts charged and partial revocation of public prosecution in accordance with the method of changing indictment;

In accordance with the method of changing indictment, the withdrawal of facts charged or applicable provisions of Acts can be limited to some facts charged or applicable provisions of Acts within the scope recognized as identical to the facts charged. Thus, in cases where several facts charged in the indictment are not identical with each other and there are substantive concurrent relations, the method of changing the indictment shall not be followed, but the procedure of partially cancelling the prosecution shall be followed.

Articles 298 and 255 of the Criminal Procedure Act

Defendant

Busan District Court Decision 80No4627 delivered on October 30, 1981

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

We examine the Defendant’s grounds of appeal.

(1) According to the records, the original facts charged in this case are as follows: the defendant forged one copy of each application for the cancellation of provisional registration of Non-Indicted tin’s provisional registration, and two proxy copies of each application for the registration of cancellation of the establishment registration of a neighboring mortgage; used by the registrar by submitting them to the registry official; used by the registrar to make the above provisional registration and the registration of cancellation of the establishment registration of a neighboring mortgage; used by the registrar to keep them available for public inspection; and the fact that the victim Lee Jong-il, the debtor, received the above provisional registration and the registration of cancellation of the establishment registration of a neighboring mortgage, which are the debt security, from the fact that the application was made with legitimate documents, and acquired it by fraud. In the first instance trial, the prosecutor accepted the above facts charged as 8,560,000 won from the date of the above transfer, and stored the defendant in order to deliver the principal and interest payment amount to the victim Lee Jae-jin at will, and then the court modified the indictment to the effect that the defendant embezzled it by arbitrarily consuming the amount of eight million won.

(2) However, the alteration of indictment pursuant to Article 298 of the Criminal Procedure Act requires permission to the extent that does not harm the identity of the facts charged. In light of the foregoing, the facts charged with forgery of private documents, events, false entry of the original authenticated document, events, and fraud, which are the original facts charged, cannot be deemed identical to the facts charged of embezzlement, and thus, permitting the alteration of the entire facts charged as the whole of the original facts charged as the facts charged of embezzlement cannot be deemed illegal measures beyond the limit of the identity of the facts charged.

However, there is a room to interpret the amendment of the indictment as the purport of withdrawing the part concerning the forgery of private documents, the uttering of the original indictment, the false entry of the authentic copy of the authentic deed, and the part concerning the fraudulent act, and only the part concerning the fraudulent act into the embezzlement, which is the crime of the same property, among the original facts charged and the applicable provisions of Acts. However, even in this case, the facts charged or the withdrawal of the applicable provisions of Acts can be limited to some facts or applicable provisions within the scope recognized as identical to the facts charged. Thus, in a case where several facts charged in the indictment are not identical and substantial concurrent relations with each other, in order to withdraw some facts from the indictment subject to prosecution, it shall not be limited to the method of changing the indictment, but it shall not be limited to the procedure of cancelling part of the indictment in order to withdraw them from the indictment subject to prosecution. Thus, the facts charged concerning documents, such as the forgery of the above private documents, fall under the part of facts that are not identical to the facts charged of fraud

(3) Ultimately, the court below erred in the misapprehension of law by excluding the above violation of the procedure of the court of first instance and affected the conclusion of the judgment, and there is a ground to discuss this issue. Thus, the judgment on other grounds of appeal is omitted. The judgment of the court below is reversed and the case to be tried again is remanded to Busan District Court Panel Division. It is so decided as per Disposition by the assent of all participating

Justices Lee Lee Sung-soo (Presiding Justice)