A. Criteria that the difference between the facts charged and the facts charged requires changes in indictment (=whether there is a concern about substantial disadvantages in exercising defense rights)

(b) The case holding that the indictment of Article 4 subparagraph 2 of the Punishment of Violences, etc. Act, which "the defendant joined the act ledger around the Shinyang, 1987 and organized the Shinyang Paol Payang Payang Payang Payang Paw," should be approved as criminal facts of Article 4 subparagraph 3 of the same Act in order to recognize the defendant as criminal facts of Article 4 subparagraph 3 of the same Act.

A. In general, the date and time of the crime is not a requirement for the specification of the facts charged and it is not a basic element of the facts charged, and even if the same facts are recognized differently, it is not necessarily required to be modified. However, if the difference between the date and time of the crime is not simple mistake but it is apprehended that the change would bring about substantial disadvantages to the defendant's defense, it is necessary to revise the indictment in case that the change is not a simple mistake, and the facts charged are identical to the facts charged in recognizing the facts charged, and if there is no concern that the exercise of the defendant's right of defense would bring about substantial disadvantages, it may be recognized somewhat differently without the modification of the indictment. However, if it is not so, it is impossible to recognize facts different from the facts prosecuted without

(b) The case holding that as to the facts charged under Article 4 subparagraph 2 of the Punishment of Violences, etc. Act that "the defendant joined the act ledger around March 1987 and constituted a new maloppy by forming the act ledger," the court must go through the amendment of indictment procedure to recognize the facts charged under subparagraph 3 of the same Article that "the defendant joined the new maloppy around September 198" as criminal facts under subparagraph 3 of the same Article.

Article 298 of the Criminal Procedure Act

A.B. Supreme Court Decision 91Do723 delivered on June 11, 1991 (Gong1991,1962). Supreme Court Decision 81Do1935 delivered on June 22, 1982 (Gong1982,712), Supreme Court Decision 82Do2196 delivered on December 28, 1982 (Gong1983,390), Supreme Court Decision 91Do65 delivered on March 27, 1991 (Gong191,1318)

Defendant

Defendant

Attorney Kang Han-hee

Gwangju High Court Decision 92No270 delivered on July 3, 1992

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

1. According to the records, the first instance court recognized that the Defendant was sentenced to a suspended sentence of three years for a violation of the Punishment of Violences, etc. Act at the Gwangju District Court on February 7, 1991, and that the sentence became final and conclusive on the grounds that he was sentenced to a suspended sentence of one year and six months, and recognized the facts as 1-A, B, C, and 1-B, and 1-B, and 1-6, respectively, as stated in the judgment prior to the above final and conclusive judgment, and the lower court maintained the sentence.

2. We examine the grounds of appeal. The supplemental appellate brief is deemed to the extent of supplement in case of supplemental appellate brief.

The 1-A crime(the point of the organization of a criminal organization)

A. According to the records, with respect to the crime in subparagraph A of Article 1 of the judgment, the prosecutor stated the facts charged that the defendant, upon the recommendation of the non-indicted on March 1987, the defendant joined the behavior ledger with the knowledge that he was an organization with the intention of violence and that he was an organization with the intention of violence. The court of first instance or the court below acknowledged that the defendant joined the above organization around September 198 and applied subparagraph 3 of Article 4 of the Punishment of Violences, etc. Act, and sentenced him not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act because the above facts charged are the time when there is no proof of criminal facts and thus, it can be recognized that the defendant joined the above new mal wave on September 1988, and this is recognized as within the scope of judgment without changing the indictment without the alteration of the indictment, and thus, the court of first instance or the court below ruled that the defendant was not guilty separately.

B. In general, the date and time of the crime is not the requirement for the specification of the facts charged, and even if the same facts are recognized differently, it is not necessarily required to be modified. However, if the difference between the date and time of the crime is not simple mistake but it is apprehended that the change would bring about a substantial disadvantage to the defense of the defendant, it is required to modify the indictment (see, e.g., Supreme Court Decision 91Do65, Mar. 27, 191; Supreme Court Decision 91Do723, Jun. 11, 191; 91Do723, Jun. 11, 199). In recognition of the facts charged, if the facts charged are identical to the facts charged, and if it is not likely to bring a substantial disadvantage to the defendant's exercise of his/her right to defense, it may be recognized differently from the facts charged without going through the procedures for the modification of indictment and it is not in violation of the principle of incom

C. However, the court below found the defendant as guilty on the ground that there was no proof of the facts charged that the defendant as stated in the indictment was an executive member as the behavior register of the Shinyang-in-the-counter in March 1987, and that he was merely admitted on September 1, 1988 with the last one year and six months since then, it cannot be deemed that the difference in the date and time is a simple mistake, and rather, it is decided based on evidence on the premise that it is compatible with the organizational fact of a separate criminal organization, etc. in each of the above dates, and it is recognized as guilty on the facts of joining the criminal organization different from the written indictment without modification of the indictment. Thus, it is not possible to give disadvantages to the defendant's defense (see Supreme Court Decision 91Do723, Jun. 11, 1991).

Unless otherwise stated in this case, the defendant's assertion that there was no fact that he had become a new malutism executive officer around March 1987 is insufficient to defend the defendant. It is unfair to defend the fact that he did not have joined the new malutism on any later date, and that he was unrelated to the fact that he did not have joined the new malutism. If it can be recognized as the same in the judgment of the court below, the defendant can be recognized as an unexpected criminal facts and may not be likely to have any substantial disadvantage in exercising his right to defense.

D. Therefore, the judgment of the court below on this part is erroneous in the misunderstanding of legal principles as to the amendment of indictment or the scope of adjudication, and the above part of the judgment below cannot be maintained as it is justified.

3. The grounds for appeal as to the crime No. 1-B and No. 1-B in the judgment are examined, and the first instance court included in the sentence No. 1-A in the number of detention days prior to the rendering of the judgment. If the crime No. 1 in the judgment in this case is found guilty, the number of detention days prior to the rendering of the judgment in the first instance shall be included in the sentence. However, if the crime No. 1 in this case is found guilty, the number of detention days prior to the rendering of the judgment in the first instance shall be included in the sentence, but if the crime No. 1-B in this part is found guilty, and if multiple crimes are found guilty, the number of detention days prior to the rendering of the judgment in the first instance shall be included in the sentence. Thus, without examining the grounds for appeal by the

4. Therefore, the judgment of the court below shall be reversed and remanded in full. It is so decided as per Disposition by the assent of all participating Justices.

Justices Choi Young-young (Presiding Justice)