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The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.
Reasons
The grounds of appeal are examined.
1. Examining the reasoning of the lower judgment in light of the evidence duly admitted by the first instance court, which maintained the reasoning of the lower judgment, the lower court was justifiable to have convicted the Defendant of the fraud of the victim M among the facts charged in the instant case on the grounds stated in its reasoning. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence
2. As to the prosecutor’s grounds of appeal, Article 298(1) of the Criminal Procedure Act provides, “The prosecutor may, with the permission of the court, add, withdraw, or change charges or applicable provisions of Acts stated in the indictment. In this case, the court shall grant permission to the extent that the identity of the charges is not disturbed.”
The above provision purports that the court shall permit the modification of indictment unless the prosecutor's application for modification of indictment does harm the identity of the facts charged. The identity of the facts charged is maintained as it is if the social factual relations, which form the basis of the facts, are the same in basic terms. However, in determining the identity of such basic factual relations, the defendant's act and social factual relations shall be based in mind with the function of identity of the facts, and the normative elements
(See Supreme Court en banc Decision 93Do2080 delivered on March 22, 1994, Supreme Court Decision 98Do1438 delivered on May 14, 1999, etc.). The lower court rejected the prosecutor’s application for modification of an indictment to the effect that the victim changes the victim from E to G, and rejected the prosecutor’s appeal against the fraud of the victim E on the ground that there is insufficient evidence to prove that the victim is E.
However, in light of the above legal principles, the court below is the prosecutor.