2013Do1646 Fraudulent (a recognized crime: Breach of Trust)

1. A;

2. B

Defendants

Attorney C (for the defendant)

Attorney Z (the national line for the defendant B)

Cheongju District Court Decision 2012No390 Decided January 18, 2013

March 26, 2015

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Amendment of the indictment is permitted only to the extent that the identity of the facts charged is recognized, and where the prosecutor files an application for amendment of the indictment to the effect that the facts charged are added to the facts charged, the court shall dismiss the application for amendment. The identity of the facts charged is maintained if the social factual relations, which form the basis of the facts, are the same in basic respect. However, when determining the identity of such basic factual relations, the defendant’s act and social factual relations should be based in mind, and normative elements should also be taken into account (see, e.g., Supreme Court Decision 2011Do3469, Apr. 13, 2012).

2. A. According to the record, the prosecutor indicted the victim of the crime that "the defendant conspireds with the victim G about the transfer of the share of the instant right to collateral security held by the victim G, and would make a large amount of distribution by clarifying that the claim of H, which is another right holder of the right to collateral security, is false." In addition, the prosecutor prosecuted the victim by the agreement that "I would make 1/2 out of the remainder after deducting the expense from the amount of distribution," thereby deceiving the victim, and obtained a registration of transfer of the share of the instant right in the name of the defendant from the defendant." On November 2, 2011 during the trial of the court of first instance, "the defendant obtained the share of the instant right to collateral security from the victim under the name of the defendant after making the agreement with the victim, and thus, in accordance with the agreement of this case, the other right holder of the right to collateral security, was cancelled, and conducted an auction without the victim's consent to the above request for auction.

On November 11, 2008, the title of the right to collateral security in the instant case was transferred to Defendant B, and Defendant B transferred this on August 2, 2010 to T and U, thereby causing damage equivalent to the maximum debt amount and acquiring the same profit to T and U.S.). The first instance court requested the modification of the instant indictment to add the criminal facts in preliminary. The first instance court allowed the modification of the instant indictment during the date of the trial of November 1, 201, 15, and 3rd.

B. Examining the above legal principles and the above factual relations revealed in the record, the criminal facts of breach of trust added to the initial criminal facts charged against the Defendants, which were prosecuted, are clearly different from the content and form of the criminal facts, such as the date, time, place, means, and method of the crime, and the result of the crime differs, and thus, the basic facts are not identical.

C. Nevertheless, the court below maintained the judgment of the court of first instance which declared the conviction of the crime of breach of trust by permitting the modification of the indictment in this case. This is erroneous in the misapprehension of legal principles as to the identity of the facts charged or the modification of indictment

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim In-bok

Chief Justice Min Il-young

Justices Park Young-young

Justices Kim Jong-il