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The prosecutor's appeal is dismissed.
Reasons
1. Summary of prosecutor's grounds for appeal;
A. According to the evidence submitted by a mistake-finding prosecutor, the Defendant acquitted the Defendant on the ground that he did not have any intention of unlawful acquisition on the ground that the Defendant was not guilty on the ground that he had any intention of unlawful acquisition, even though he was able to fully recognize the fact that the 1,500,000 won of the market price of the instant real estate installed at the option in the course of delivering the instant real estate by leasing the 49th floor of Busan Shipping Daegu Dtel (hereinafter “instant real estate”) from C, but the lease contract was terminated, and that the transfer of the instant real estate was completed, and that the 1,500,000
B. According to Article 298(2) of the Criminal Procedure Act, if the court deems it reasonable in light of the progress of the hearing, it does not require the prosecutor to add or modify the charges of larceny or the charges of larceny, and the court below did not request the prosecutor to add or change the charges of embezzlement or the charges of larceny. Therefore, the court below erred in the incomplete hearing.
2. The prosecutor's incomplete hearing or erroneous determination of facts
A. The issue of whether the court, as to the argument of the incomplete hearing, requests the prosecutor to change the indictment in accordance with Article 298(2) of the Criminal Procedure Act is not the duty of the court but the discretionary authority. Thus, it cannot be said that there is an error of law in the incomplete hearing on the ground that the court below did not urge or demand the prosecutor to change the charge of larceny prosecuted into the charge of embezzlement, damage to property, etc. (see, e.g., Supreme Court Decision 9Do3003, Dec. 24, 199). Accordingly,
B. The amendment of indictment requires that the existing facts charged shall be kept as the primary facts charged, and the name of the crime shall be deemed as embezzlement, and Article 355(1) of the Criminal Act shall be deemed as “Embezzlement.”