(a) If the recognition of the temporary change of a crime is likely to disadvantage the defendant's exercise of his/her defense right, the amendment of the indictment is required (affirmative);

B. In a case where there is no evidence that the organization of a temporary criminal group as stated in the facts charged is supported by evidence, whether the court can be found guilty of the organization of a temporary criminal group that is different from the facts stated in the indictment without going through the amendment process of indictment (negative)

A. Generally, the date and time of the crime is not a requirement for the specification of the facts charged, and the date and time are somewhat different from the facts charged, making it difficult to say that there is no identity of the basic facts. However, in a case where the difference between the date and time is not simple mistake but it is compatible with the facts of the crime that differs temporarily due to the nature of the case, recognizing the guilty of the facts of the crime, which is different from the date and time stated in the facts charged, might put a disadvantage to

B. The crime group under Article 4 of the Punishment of Violences, etc. Act does not require continuous combination and refers to a group in which many people gather in the same place at the same time, and the form of the group is dyphere, executive members, and participants can be separated. Thus, the time and place of the organization of a group is a major element for specifying criminal facts. The court below found the defendant guilty on the ground that there is no evidence of the organization of a group in around December 198, the date and time stated in the facts charged, and the fact of organization of a group in around March 1990 is supported by evidence. However, the court below found the defendant guilty on the ground that the above difference in the date and time is not considered as a simple mistake, and it is recognized as guilty of the organization of a group that is different from the facts stated in the indictment without undergoing the amendment procedure, and therefore it is not allowed to give disadvantages to the defendant's exercise of his right to defense.

(a)Article 254, Article 298, Article 4 of the Criminal Procedure Act, and Article 4 of the Punishment of Violences, etc. Act

A. Supreme Court Decision 81Do1935 delivered on June 22, 1982 (Gong1982,712), 82Do2156 delivered on December 28, 1982 (Gong1983,391), Supreme Court Decision 91Do65 delivered on March 27, 1991 (Gong1991,1318), Supreme Court Decision 76Do3267 delivered on December 14, 197 (Gong197,9821) (Gong157,85Do15 delivered on March 24, 197) (Gong1987,765).

Defendant

Defendant

Attorney Park Dong-hwan et al.

Seoul High Court Decision 90No4023 delivered on February 25, 1991

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

The defendant and his defense counsel's grounds of appeal are also examined.

1. As to the organization of a criminal group

(1) According to the records, the part of the crime group in the facts charged in this case is that the defendant organized a new kin-frequency criminal group composed of two defendants from the 39-8 Mammo-gu, Nam-gu, Incheon, Nam-gu 39-8 Mammo-gu, the Mammo-gu, Incheon. The court below found the defendant guilty on the ground that the prosecutor's statement of the co-defendant in the court below, which corresponds to the fact that the date of the crime group is around December 198, 198, is not reliable and there is no other evidence, while according to the facts admitted by the court below, it is reasonable to view that the daily crime group of the defendants was formed around March 199 at the latest, and the difference between the date and time of the crime is not bound by the written indictment, but by recognizing the date and time of the crime as around March 3, 199 without going through the amendment process of indictment.

(2) However, in general, since the date and time of a crime are not a requirement for the specification of facts charged, and the date and time are somewhat different, it cannot be said that there is no identity of basic facts. However, in a case where the difference between the date and time is not a simple mistake but a separate crime that differs from the date and time in the nature of the case is compatible with the facts of a separate crime, recognizing the guilty of a temporary crime that is different from the date and time stated in the facts charged may put a disadvantage to the defendant’s exercise of his/her right to defense, it is necessary to amend the indictment (see Supreme Court Decision 82Do2156, Dec.

The crime group under Article 4 of the Punishment of Violences, etc. Act, which is at issue in this case, does not require continuous combinations, unlike the crime group under the same Article, and at the same time, means that the form of organization can be divided into several groups, executives, and subscribers (see Supreme Court Decision 76Do3267 delivered on December 24, 197; Supreme Court Decision 87Do157 delivered on March 24, 1987; Supreme Court Decision 87Do157Do15 delivered on March 24, 198, etc.). Thus, the court below found the defendant guilty on the ground that there is no evidence as to the fact of organization of the crime group around December 198, 198, which is the date stated in the facts charged in this case, is supported by evidence of the organization of the crime group, and thus, it is not likely that the above difference in date should not be considered a simple mistake, and it should not be considered that the defendant's right of defense should not be established by evidence.

(3) Ultimately, the judgment of the court below is erroneous in finding facts different from the basic facts of the facts charged without going through the amendment of indictment, and the organization of the crime group shall not be exempted from the reversal without examining other grounds of appeal.

2. As to crimes 4, 7 at the time of the original adjudication

In light of the records, the court below is justified in finding guilty of the crime 4, 7, and there is no illegality of finding facts without any evidence, such as the assertion of arguments.

3. Ultimately, the judgment of the court below cannot be maintained for the reasons stated in the judgment on the first ground of appeal. The court below rendered a single sentence against the defendant for concurrent crimes under Article 1 of the Punishment of Violences, etc. Act (criminal group organization) and paragraphs (4) and (7) of the facts charged by treating the defendant as concurrent crimes under paragraphs (1) and (4) and (7) of the facts charged. Thus, the judgment below is reversed and remanded in its entirety by the assent of all Justices who reviewed the appeal.

Justices Song Man-man (Presiding Justice)