[1] The case holding that, among the charges of violation of the Punishment of Violence, etc. by Night Intimidation Act, where only the date and time of the crime was changed from around 04:0 on May 4, 199 to the "new wall concurrence on August 4, 200," among the charges of violation of the Punishment of Violence, etc. by Night Intimidation, the identity of the charges before and after the change can be recognized in light of the process of the change

[2] The case reversing the judgment of the court below which sentenced punishment by applying the latter part of Article 37 of the Criminal Code before the revision on the ground that the latter part of Article 37 of the Criminal Code should be applied to punishment of concurrent crimes after the amendment by Act No. 7077 of Jan. 204

[1] Articles 254(4) and 298 of the Criminal Procedure Act / [2] Articles 1(2) and 37 of the Criminal Act

Defendant

Defendant

Attorney Kang Chang-ro

Suwon District Court Decision 2002No1361 delivered on January 30, 2003

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

1. Judgment on the grounds of appeal

A. The identity of the facts charged is maintained as it is if the social facts, which form the basis of the facts, are identical in basic respect (see Supreme Court Decision 82Do2156, Dec. 28, 1982).

According to the records, since the defendant stated in the indictment of this case through an application for changes in the indictment of this case on November 21, 2002 submitted to the court below on the date of May 1999, "the defendant threatened him with the relation between the victim and another male during telephone at around 04:00" changed the date and time of the crime without maintaining other facts in the charges of violation of the Punishment of Violences, etc. Act, such as the method of crime and intimidation. The facts charged before and after the above change are the object of intimidation of the defendant, such as the statement in the charges confirmed by the method of recording the contents of telephone and reproducing the recorded tape submitted by the victim. The victim's temporary change in the indictment of this case is right and wrong since it stated the same facts as before and after the investigation as the victim stated in the indictment of this case on the same date and stated that the defendant's temporary change in the indictment of this case is the same as the date and time as the victim stated in the ground for appeal of this case, and it cannot be found that the defendant made a statement at the same time and statement in the same 900.

B. Examining the evidence adopted by the court below in light of the records, it is proper that the court below found the defendant guilty of all of the offenses against each fraud and the Punishment of Violences, etc. Act as stated in the judgment of the court below, and there is no error of misconception of facts due to violation

2. Ex officio determination

ex officio, the court below sentenced the defendant to a punishment for the crime that the defendant committed before or after the final decision of the fine, on the ground that there was a crime for which a fine became final and conclusive.

However, among the crimes promulgated and enforced by Act No. 707 of Jan. 20, 2004, "the crime for which the judgment in the latter part of Article 37 of the Criminal Act has become final and conclusive by the Act" was amended to "the crime for which a judgment to face with imprisonment without prison labor or a heavier punishment has become final and conclusive by the Act." Although the above Act does not have any special transitional provisions, Article 37 of the Criminal Act is advantageous to the defendant since the sentence of a punishment for concurrent crimes is more favorable than the sentence for two concurrent crimes generally, it would be applied by analogy of Article 1 (2) of the Criminal Act, unless there are special circumstances such as the application of the above Act would be unfavorable to the defendant (see Supreme Court Decision 2003Do7124, Jun. 25, 2004).

However, there is no circumstance to see that applying the above revised law in this case would rather be disadvantageous to the defendant. Thus, the above revised law should be applied to the defendant. Therefore, since each of the crimes in the judgment of the court below committed by the defendant before and after the decision of the court below is in a concurrent crime relationship under the former part of Article 37 of the Criminal Act, all of the crimes in the judgment of the court below should be sentenced to one punishment. In this regard, the court below cannot

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Shin-chul (Presiding Justice)