[1] Criteria for determining the identity of the facts charged

[2] The case holding that the basic facts are not identical inasmuch as the initial criminal facts charged against the defendant and the criminal facts for which the prosecutor applied for changes in the indictment are different from the date of the crime and the other party, and the contents and form of the crime such as means and methods are different, and they are concurrent crimes

[3] In a case where the court judged the changed facts charged without making an explicit decision on the prosecutor's oral application for modification of indictment, whether such decision on permission was made (affirmative)

[1] The modification of indictment is permitted only to the extent that the identity of the facts charged is recognized, and where there is an application for modification of indictment to the effect that the facts charged are added as the facts charged, the court shall dismiss the application for modification of indictment (Article 298(1) of the Criminal Procedure Act). The identity of the facts charged is maintained if the social facts, which form the basis of the facts, are the same in the basic point of view. However, in determining the identity of these basic facts, the defendant's act and the social factual relations are based in mind, and the normative elements should also be taken into account.

[2] The case holding that the basic facts are not identical inasmuch as the initial criminal facts charged against the defendant and the criminal facts for which the prosecutor applied for changes in the indictment are different from the date of the crime and the other party, and the contents and form of the crime such as means and methods are different, and they are concurrent crimes

[3] In a case where the defendant's oral and written application for changes in indictment was approved by the prosecutor in the court where the defendant finances, and the court immediately followed the trial proceedings without dismissing the above changes, it is reasonable to deem that the permission was granted even if the court did not make an explicit decision on permission for changes in indictment.

[1] Article 298(1) of the Criminal Procedure Act / [2] Article 298(1) of the Criminal Procedure Act / [3] Article 298(1) of the Criminal Procedure Act, Article 142(5) of the Rules on Criminal Procedure

[1] Supreme Court en banc Decision 93Do2080 delivered on March 22, 1994 (Gong1994Sang, 1368), Supreme Court Decision 95Do1270 delivered on June 28, 1996 (Gong1996Ha, 2424), Supreme Court Decision 96Do88 delivered on August 23, 1996 (Gong1996Ha, 2935), Supreme Court Decision 97Do3297 delivered on June 26, 1998 (Gong198Ha, 204), Supreme Court Decision 97Do2487 delivered on August 21, 198 (Gong1998Ha, 2365) and Supreme Court Decision 2005Do1381 delivered on May 14, 1999 (Gong1998Ha, 2365).

Defendant

Defendant

Incheon District Court Decision 2001No1440 delivered on January 17, 2002

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

The modification of the indictment shall be permitted only to the extent that the identity of the facts charged is recognized, and where there is an application for modification of the indictment to the effect that the facts charged are added as the facts charged, the court shall dismiss the application for modification (Article 298(1) of the Criminal Procedure Act). The identity of the facts charged is maintained if the social factual relations, which form the basis of the facts, are the same in the basic point of view. However, in determining the identity of these basic facts, the defendant’s act and social factual relations shall be based on the function of the identity of the facts, and normative elements shall also be taken into account (see, e.g., Supreme Court Decision 98Do1438, May 14, 199

In light of the records, at around 04:00 on February 27, 200, the prosecutor first filed an application for a summary order by filing a public prosecution against Non-Indicted 1 (Nam, 16 years old), which is a harmful substance for juveniles, within the large forest conference located in Bupyeong-gu Incheon, Bupyeong-gu, Incheon, for a summary order. On May 15, 2001, the prosecutor first filed an application with the defendant for a summary order by filing a motion for a summary order. On February 26, 2000, the prosecutor appealedd Non-Indicted 2 (Nam, 16 years old), which is a harmful substance for juveniles, to the above large forest council, around 20:0 on February 26, 200, and the first instance court sentenced to a fine of 10 won for modified criminal facts, and dismissed the judgment of the court below.

However, since the initial criminal facts charged against the defendant and the criminal facts for which the prosecutor applied for changes in the indictment are different from the date and time of the crime and the other party, as well as the form of the crime, the basic facts cannot be deemed identical.

Therefore, in this case where the first instance court permitted the application for the modification of the indictment of this case (the defendant's oral consent of the defendant, and the court did not dismiss the above modification, it is reasonable to see that the permission was granted even if the first instance court did not make an explicit decision on the application for the modification of the indictment of this case) and then the first instance court dismissed the defendant's appeal by examining the changed criminal facts that are not recognized as identical to the original criminal facts. Thus, the court below erred by misapprehending the legal principles on the identity of the facts charged or the modification of the indictment of this case, which affected the conclusion of the judgment. The ground of appeal pointing this out is with merit.

Therefore, the judgment of the court below is reversed without examining the remaining grounds of appeal by the defendant, 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 Ji-dam (Presiding Justice)