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The judgment below
The part against Defendant C is reversed, and that part of the case is remanded to the Seoul High Court.
Reasons
The grounds of appeal are examined.
1. Examining the Prosecutor’s grounds of appeal, the lower court was justifiable to have rendered a not-guilty verdict on each part of the remainder of the facts charged, except for the portion found guilty, based on its reasoning
There is no error of exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or of misapprehending the relevant legal principles.
2. As the identity of the facts charged or the facts charged of Defendant A’s grounds of appeal is a concept under the Criminal Procedure Act, it is necessary to consider the significance of the criminal procedure or the legal function of the lawsuit. Therefore, whether the basic facts of the two crimes are identical or not can not be grasped solely from a purely social and legal point of view without completely excluding the normative elements. It is reasonable to view that such normative elements constitute a substantial part of the identity of the basic facts, in addition to whether the natural, social, or the defendant’s act
(See Supreme Court en banc Decision 93Do2080 delivered on March 22, 1994). Examining the evidence duly admitted and investigated by the court below and the first instance court, the court below is justified in finding Defendant A guilty of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) for the reasons stated in its holding.
There is no error of exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or of misapprehending the legal principles on changes in indictment and fraud.
3. As to the grounds of appeal on the amendment of the indictment by Defendant C, the amendment of the indictment shall be permitted only to the extent consistent with the facts charged, and where there is an application for amendment of the indictment to the effect that the facts constituting an offense for which identity of the facts charged is not recognized as the facts charged, the court shall dismiss