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The judgment of the court below is reversed.
Defendant shall be punished by a fine of 300,000 won.
The above fine shall not be paid by the defendant.
Reasons
1. The court below's decision of innocence against the defendant without accepting the prosecutor's motion for modification of indictment is erroneous in the misapprehension of legal procedure and thereby affecting the conclusion of the judgment.
2. Determination
A. Upon ex officio determination, the prosecutor applied for changes in the name of the crime of this case to "Violation of the Road Traffic Act", "Article 109 subparagraph 5 and Article 63 (2) of the former Road Traffic Act (amended by Act No. 7545 of May 31, 2005)", and "the defendant applied for changes in the indictment to "from September 16:30 of 2005 to 22:00 on the front side of the C Bank located in Yeongdeungpo-gu Seoul Metropolitan City, Seoul Metropolitan City, for changes in the indictment to "The defendant left without permission things that could impede traffic by installing a board board of the C Bank located in Yeongdeungpo-gu, Seoul Metropolitan City ( approximately 1 meter, about 6-7 meters in length, about 1 meter, and about 6-7 meters in length)," and the judgment below was no longer maintained in this regard.
B. (1) Determination on the Defendant’s assertion is unlawful, since the identity of the facts charged before and after the amendment of the indictment is not recognized. Therefore, the court’s permission to change the indictment above.
(2) The public prosecutor may add, delete, or modify charges or applicable provisions of Acts stated in the indictment with the permission of the court within the extent not impairing the identity of the facts charged. The identity of the facts charged is maintained if the social factual relations, which form the basis of the facts charged, are the same in the basic point of view. In determining the identity of such basic facts, the defendant’s act and the social factual relations shall be based in mind of the function of the identity of the facts charged, and the normative elements shall also
Supreme Court Decision 2009Do9593 Decided June 24, 2010