2017Do20575 Fraudulent

A

Prosecutor

Gwangju District Court Decision 2017No253 Decided November 22, 2017

July 11, 2018

The appeal is dismissed.

The grounds of appeal are examined.

1. In a case where it is proved that the victim of the facts charged and the victim of the indictment are different from those indicated in the indictment, the accused should be found guilty by pointing out the other actual victim as stated in the indictment ex officio without due process of modification of indictment, unless the identity of the accused is harmed and it does not substantially disadvantage the defendant's defense right (see, e.g., Supreme Court Decision 2001Do6876, Aug. 23, 2002)

2. The record reveals the following facts.

A. The summary of the revised facts charged in the instant case is that “the Defendant conspireds to obtain a loan by fraudulent means to arrange for a fraudulent loan, and to obtain a loan of a house leasing loan operated by the Republic of Korea from the National Housing Fund to a commercial bank with the financial resources of the National Housing Fund of the Republic of Korea.” The Defendant submitted a false lease contract, false employment certificate, detailed statement of wages, income tax withholding receipt, etc. to the bank in Korea, a trustee of the victim, and applied for a loan of a house leasing loan to the company, which is a trustee of the victim, and that it received a payment from the victim on May 10, 2013 of the name

B. As to this, the first instance court deemed that the victim’s property damage of the instant fraud was the Republic of Korea, not the Republic of Korea in the written indictment, and recognized ex officio correction of the victim without modification of the indictment and convicted the victim of all the modified charges, and determined the victim not guilty on the facts charged that the victim was the Republic of Korea. The prosecutor appealed on the part not guilty of the first instance court on the ground of unreasonable sentencing on the ground of the illegality of erroneous determination of facts which found the victim erroneous. However, the lower court dismissed the prosecutor’s appeal by citing the first instance court’s judgment.

D. The prosecutor appealed to the effect that the court below ex officio corrected the victim and rendered a not guilty verdict on the existing facts charged.

3. Examining the above facts in light of the legal principles as seen earlier, the prosecutor and the first instance court found the victim guilty of the modified facts charged after correcting the victim ex officio to our bank in the Republic of Korea. As long as all the modified facts charged are found guilty, it is unnecessary to determine innocence on the ground that the victim was the victim who was originally prosecuted. Accordingly, the first instance court’s acquittal on the grounds of the above judgment is unnecessary.

The judgment should be deemed to have only the meaning of the statement on the grounds of ex officio correction of the victim.

4. A prosecutor, as a representative of the public interest, has the duty to claim the legitimate application of the law, and thus, a judgment unfavorable to the opposing party may be appealed in order to correct the illegality if it is illegal, but objection shall be related to the order of the judgment, and it is not allowed to file an appeal to challenge only the reasons of the judgment (Supreme Court Decision 2003Do8249 Decided March 26, 2004).

5. Examining the progress of the instant case in light of the aforementioned legal principles, the Prosecutor’s ground of appeal is erroneous in the judgment of the court below that found the victim of the instant fraud differently from the indictment by the prosecutor, but it is not with regard to the order of the court below that convicted the whole revised charges of the instant case, but with a view to dispute only for the reasons, it is not permissible. Accordingly, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok

Justices Kim Jae-han

Justices Lee Dong-won