[1] The elements for the court to acknowledge facts constituting a crime different from those stated in the indictment ex officio without changing the indictment

[2] Whether the court may acknowledge the facts charged that the court committed the crime under Article 3 (1) of the Punishment of Violences, etc. Act without modification of the indictment that "to carry with another person a deadly weapon or other dangerous article," and "on the other person's property, by exercising force from an organization or a large number, or by showing a power under the embling of an organization or a group" (negative)

[1] Articles 254 and 298 of the Criminal Procedure Act / [2] Articles 2(1)3 and 3(1) of the Punishment of Violences, etc. Act, Article 350 of the Criminal Act, Articles 254 and 298 of the Criminal Procedure Act

[1] Supreme Court Decision 2007Do8772 Decided March 27, 2008, Supreme Court Decision 2010Do2414 Decided April 29, 2010 (Gong2010Sang, 1087)

Defendant

Defendant

Attorney Song Ho-ho

Suwon District Court Decision 2012No5697 decided March 27, 2013

The conviction part of the judgment below is reversed, and that part of the case is remanded to Suwon District Court Panel Division.

The grounds of appeal are examined.

1. As to the part concerning the crime of extortion

In order to recognize facts constituting a crime different from the facts charged as stated in the indictment ex officio without changing the indictment, the court must not only be identical to the facts charged to the extent consistent with the facts charged, but also not cause substantial disadvantages to the defendant's exercise of his right to defense (see Supreme Court Decision 2007Do8772, Mar. 27, 2008, etc.).

Article 3(1) of the Punishment of Violences, etc. Act (hereinafter “Act”) provides that “Any person who commits any of the crimes listed in Article 2(1) by force of an organization or a large number, or by showing the power under the pretending to an organization or a group, or by carrying with himself any deadly weapons or other dangerous articles, shall be punished in the same manner as prescribed in each subparagraph of Article 2(1).” In this context, a person who commits any of the crimes referred to in Article 3(1) of the Punishment of Violences, etc. Act (hereinafter “the method of collective power, etc.”) and a person who commits any of the crimes “the method of carrying a deadly weapon or other dangerous articles (hereinafter “the method of carrying a deadly weapon, etc.”) shall be punished in order for a court to recognize another person’s property by force, etc. by carrying a deadly weapon, etc.

The summary of the facts charged of this case is that "the defendant sought the victim to Co-Defendant 1 and ordered him to receive money, and Co-Defendant 1 and Co-Defendant 1 of the court below found the victim with Non-indicted 1 and 2 together, and Co-Defendant 1 of the court below found the above facts charged, and Co-Defendant 1 of the court below found the defendant guilty of the defendant guilty of the above facts charged in collusion with the victim in collusion with Co-Defendant 1 of the court below." The prosecutor found the above facts charged as falling under Articles 3 (1) and 2 (1) 3 of the Road Act, Article 350 of the Criminal Act, and Article 350 of the Criminal Act. The court below found that Co-Defendant 1 of the court below's first instance judgment was guilty of the defendant's crime without force or by force on the part of the defendant's organization or group's amendment of indictment, which was the most likely to be approved." However, the court below found that Co-Defendant 1 was not guilty of the defendant's criminal act by force."

However, it is difficult to accept the aforementioned measures of the court below in light of the legal principles as seen earlier. First of all, it is difficult to view that the original facts in this case were included in one of the types of action. The phrase “Dam” referred to in Article 3(1) of the breadth Control Act refers to meetings of many persons who are not organizations, and even if only the number of persons is in fact and only the number of persons is gather, it can be seen as constituting a case where the name of a group or organization is based on the power of a group or organization (see Supreme Court Decision 2001Do1910, Jun. 12, 2001, etc.). However, the facts charged in this case are limited to co-defendant 1, non-indicted 1, and 2 of the court below who directly committed the crime, showed the above age and intimidation, which are dangerous things, and thus, it is difficult to view that it was prosecuted for the crime by carrying a deadly weapon, etc., or that it was not a way to defend the defendant in the trial proceedings.

Therefore, it cannot be said that the court below erred in the misapprehension of legal principles as to the modification of indictment, which affected the conclusion of the judgment, without going through the modification of indictment as above.

2. As to the part concerning the crime of coercion

The gist of the grounds of appeal as to this part is that the defendant did not wish to the victim, and that co-defendant 1 of the court below also differs in the number of times the victim had raised an interest, and that the court below found the defendant guilty by misunderstanding facts based on the victim's statement although he did not have conspired with other accomplices.

However, insofar as the recognition of facts and the selection and evaluation of evidence, which are the premise thereof, do not exceed the bounds of the principle of free evaluation of evidence, this part of the lower court’s fact-finding does not appear to have exceeded the bounds of the principle of free evaluation of evidence against logical and empirical rules, even after examining the reasoning of the lower judgment in light of the records. Therefore, the allegation in the grounds of appeal is nothing more than criticisming the matters belonging to the exclusive authority of the lower court, and thus, it cannot be accepted. Meanwhile, the lower court held that the crime of this part of the lower court was committed “a group, carrying dangerous objects,” and that the method of multiple power, etc. and the method of carrying deadly weapons, etc. is recognized. However, according to the records, the lower court clearly stated that this part of the facts charged is specified as a crime by carrying a deadly weapon, etc., and as long as the lower court acknowledged this, it did not affect the conclusion of the judgment

3. Conclusion

Therefore, among the judgment of the court below, the part which found the defendant guilty of the violation of the Act on the Punishment of Exposure should be reversed illegally. Since the remaining part of the judgment of the court below (the violation of the Act on the Punishment of Exposure) which convicted the defendant is sentenced to a single punishment in relation to concurrent crimes under the former part of Article 37 of the Criminal Act with the above reversed part, the part of the judgment of the court below

Therefore, by the assent of all participating Justices, the part of the judgment of the court below against the defendant shall be reversed, and the case shall be remanded to the court below for a new trial and determination as per Disposition.

Justices Kim Chang-suk (Presiding Justice)