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The judgment below
The part on Defendant B is reversed, and that part of the case is remanded to the Seoul High Court.
Reasons
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. As to Defendant B
A. The court shall grant permission in accordance with Article 298(1) of the Criminal Procedure Act where the public prosecutor’s application for changes in indictment is within the scope of identity of the facts charged with respect to the grounds of appeal disputing Amendments
In addition, 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 a basic point of view. In determining the identity of such basic factual relations, the identity of the facts charged shall be maintained as is. In determining the identity of such basic factual relations, taking into account the functions of the identity of the facts, the Defendant’s act and the social factual relations, and the normative elements shall also be taken into account.
(See Supreme Court en banc Decision 93Do2080 delivered on March 22, 1994, etc.). Also, since the criminal appellate trial structure does not have only the nature as an ex post facto trial, it is possible to amend the indictment in the appellate trial. As such, the appellate court cannot be deemed that the defendant was deprived of the opportunity to receive the judgment of the first instance, and the defendant was deprived of the opportunity to receive the judgment of the first instance, and the right to receive the judgment under the law as stipulated by the Constitution was infringed, or
(2) In light of the above legal principles and records, the court below's decision that permitted the prosecutor's application for changes in indictment with the contents of changing the date and time of the crime as stated in the annexed Table 2 in the judgment of the court of first instance as to Defendant B is not erroneous in the misapprehension of indictment, the presumption of innocence, and the specification of the facts charged, contrary to what is alleged in the grounds of appeal.
(b).