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Defendant
B shall be punished by imprisonment for a year and six months.
Defendant
A shall be innocent.
Reasons
Punishment of the crime
The court may, within the scope recognized as identical to the facts charged, recognize ex officio facts constituting a crime different from those stated in the indictment, even if the indictment was not modified (see Supreme Court Decision 2000Do4419, Nov. 22, 2002, etc., 2000Do 4419, Nov. 22, 2002). The purport of this decision is that the rate may be set and sentenced under Article 347(2) of the Criminal Act for acquiring a third party without changing the indictment charged under Article 347(1) of the Criminal Act for reasons of acquiring a third party without amending the indictment. The facts charged are assessed that profits accrue to the defendant even under the premise that the defendant and A conspired to commit a crime, but it is insufficient to prove that A conspired to commit a crime, as seen below, as seen in the “not guilty portion”. Thus, the person who obtained profits from the crime is deemed A.
On the other hand, according to the records and arguments of this case, it is recognized that both the defendant and the victim recognized that KRW 100 million paid as the case belongs to A, and the defendant India denied the crime on the premise that the above KRW 100 million belongs to A.
Thus, the 100 million won delivered by the victim according to the recognition of the public offering relationship between the facts charged and the facts charged based on evidence can be attributed to anyone.
There is a difference in the legal evaluation of the facts charged only within the scope that the identity of the facts charged is recognized and criminal facts recognized by evidence are likely to substantially disadvantage the exercise of the defendant's right to defense.
As can not be seen, the criminal facts are modified and recognized as mentioned above (Article 347, Paragraph 2 of the Criminal Act and the defense justice are applied to cases where a defendant, who is not the principal, receives property or receives money or valuables.