The method of determining the identity of the facts charged in the amendment process / Where only the date and time differs between the initial facts charged and the modified facts charged, the standard of determining whether the facts charged before and after the amendment are identical.

In order to determine the identity of the facts charged in the process of Amendments to Bill of Indictment, it shall be individually determined on the same factual basis as a basic point of view. In a case where only the date and time are different between the first facts charged and the modified facts charged, if one of the crimes is closely related to both parties to the extent that the other party’s crime cannot be established, the other party’s basic facts should be identical even at intervals of time. However, if there are circumstances to deem that two of the facts charged are compatible in light of the nature of the case, the other party’s basic facts are at risk of different social facts, and such basic facts cannot be deemed identical.

Articles 254(4) and 298 of the Criminal Procedure Act

Supreme Court Decision 82Do2156 Decided December 28, 1982 (Gong1983, 390) Supreme Court Decision 2007Do1048 Decided May 10, 2007

Defendant

Defendant

Law Firm Gangnam-LLC, Attorneys Lee Dong-soo et al.

Seoul Central District Court Decision 2018No739 decided September 14, 2018

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

The grounds of appeal are examined.

1. In order to determine the identity of the facts charged in the amendment of a bill of indictment, it shall be individually determined on the same facts in a basic point of view. In a case where only the date and time are different between the first facts charged and the revised facts charged, in a case where the two are closely related to one another’s crime, if the other party’s crime is established, the other party’s basic facts should be the same even at intervals of time. However, in a case where there are circumstances to deem that two facts charged are compatible in light of the nature of the case, the relevant basic facts cannot be deemed the same (see, e.g., Supreme Court Decision 82Do2156, Dec. 28, 1982).

2. The record reveals the following facts.

A. The Defendant was indicted as follows: (a) with Nonindicted 1, Nonindicted 2, Nonindicted 3, Nonindicted 4, and one-time named “the president of the marina branch,” whose name is unknown; and (b) with Nonindicted 1, Nonindicted 2, Nonindicted 3, and Nonindicted 4, from January 14, 2015 to January 15, 2015, the Defendant was indicted as follows: (c) in the instant gambling site, the term “balone” in the “△△△△△△△△△△△△△△” office (hereinafter “instant gambling”); (d) and (e) around January 2, 2015 to around the end of the following day, with Nonindicted 1, Nonindicted 2, Nonindicted 3, and the name of “the president” in which it is unknown.

B. From December 2014 to January 2015, Nonindicted Party 1, Nonindicted Party 2, and Nonindicted Party 3 met with the instant gambling site several times at the instant gambling site from around 2014 to around 2015, and during the period from around 200 a.m. to around 300 a.m., the Defendant visited Nonindicted Party 5, an operator of the instant gambling site.

C. At the prosecutorial office, Nonindicted 3 made a statement to the effect that “The Defendant was engaged in gambling with Nonindicted 1 and Nonindicted 2, etc. at the instant gambling site and was stuffed with the Defendant on December 21, 2014; ② around December 26, 2014; ③ around December 29, 2014; ④ around January 14, 2015; ⑤ around the end of January 2015; and ⑤ Nonindicted 3 made a statement to the effect that “The Defendant was stuffed with Nonindicted 1 and Nonindicted 2.” The prosecutor investigated the instant gambling at the instant gambling site; and subsequently prosecuted the Defendant only the facts charged as stated in paragraph (a).

D. At the trial of the first instance, the Defendant argued to the effect that, even if the Defendant was at the instant gambling place on the date of the crime described in A (a) in the trial of the first instance, he did not go on his money and did gambling, and that Nonindicted Party 1 was only on behalf of Nonindicted Party 1, who carried out a game at a temporary entertainment on behalf of Nonindicted Party 1.

E. In the trial of the first instance, Nonindicted 3 appeared as a witness and stated to the effect that “The Defendant satisfing and gambling the money directly by him is memoryed only once December 21, 2014.” In light of various circumstances, such as the reversal of Nonindicted 3’s statement, etc., the first instance court acquitted Nonindicted 3 and other witnesses on the whole facts charged as stated in paragraph (a) on the ground that it is difficult to believe that the statement made by Nonindicted 3 and other witnesses in the investigative agency is consistent with the facts charged, and there is insufficient evidence to acknowledge the facts charged.

F. The Prosecutor appealed against the judgment of the first instance court, and the pleadings were concluded on the second trial date, and the pleadings were resumed upon the Prosecutor’s application for changes in indictment.

G. A. Of the facts charged as stated in paragraph (1) of this Article, the prosecutor filed an application for permission to amend an indictment with respect to gambling activities on December 21, 2014, which changed the date and time of the offense prior to the alteration to “from the new wall to the beescion” (hereinafter referred to as “after the alteration of the facts charged”), and the lower court reversed the first instance judgment as to the facts charged prior to the alteration on the third trial and sentenced the Defendant to a fine of one million won after the alteration.

H. Meanwhile, Nonindicted 1, 2, and 3 were separately prosecuted on January 14, 2015 and on the end of January 2015, as indicated in the facts charged in paragraph (a) (i.e., the Defendant, etc., together with the instant gambling site, and on the end of January 2015, and thus, they became final and conclusive.

3. According to the process and content of the amendment of this part of the facts charged before and after the amendment, the facts charged constitute a separate gambling act compatible with the facts charged before and after the amendment. In the event that the facts charged before and after the amendment constituted a crime, the other party does not constitute a crime, and the public prosecutor may be deemed to have instituted an additional indictment for a new and new gambling act, instead of revising the date and time of the same gambling act by mistake, etc., through the amendment of the indictment. Therefore, the identity of the facts charged is not recognized since the facts charged before and after the amendment cannot be deemed identical with the social facts that form the basis thereof. Although the court below dismissed an application for permission of the amendment of a bill of indictment and rendered a judgment after deliberation as the subject of the facts charged before the amendment, it was found guilty. In so doing, the court below erred by misapprehending the legal principles on the identity

4. Therefore, the guilty portion of the judgment below is reversed, and the remaining grounds of appeal are omitted, and this part of 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 on the bench.

Justices Kim Jong-hee (Presiding Justice)