The case holding that there was an error of mistake or misunderstanding of facts as to the portion which is not subject to the adjudication due to changes in indictment.

The court below sentenced the Defendants not guilty on the ground that there was no evidence for habitual special larceny or habitual acquisition of stolen property. However, in the appellate trial, the prosecutor withdrawn the remainder except only one of the facts charged and subsequently changed the name of the crime and applicable provisions of Acts into special larceny or acquisition of stolen property. The modified facts charged are sufficient to be recognized in full view of the evidence submitted by the prosecutor. Thus, the court below cannot avoid reversal because the court below erred by misapprehending the legal principles on the part that is not subject to judgment against the Defendants and by misapprehending the facts contrary to the rules of evidence.

Article 298 of the Criminal Procedure Act, Article 361-5 No. 14 of the Criminal Procedure Act, Article 370 of the Criminal Procedure Act

Defendant 1 and one other

Prosecutor

Busan District Court (80Gohap418)

The judgment of the court below is reversed.

Defendant 1 shall be punished by imprisonment for one year and by imprisonment for eight months, respectively.

One hundred and fifty-five days of detention days prior to the pronouncement of the judgment of the court below shall be included in the above sentence.

However, with respect to Defendant 2, the execution of the above punishment shall be suspended for the same defendant for two years from the date this trial becomes final and conclusive.

The gist of the prosecutor's grounds for appeal is that the court below erred by misunderstanding facts against the rules of evidence.

The court below found the Defendants not guilty on the grounds that there is no evidence to prove the whole facts charged in this case against the Defendants who habitually stolen other's property in collaboration with Nonindicted Party 1 or Nonindicted Party 2, and Defendant 2 acquired stolen goods four times. However, in the trial court, the prosecutor withdraws the part concerning the remaining facts charged against the Defendants except for the part concerning the facts charged as stated in Article 1-A (1) from among the above facts charged against the Defendants, and the applicable provisions to "special larceny" are withdrawn from the part concerning the remaining facts charged except for the part concerning the facts charged as stated in Article 31 (2) and (1) of the Criminal Act. As for Defendant 2, the court below determined that the applicable provisions to "acquisition stolen stolen stolen goods" are "Article 362 (1) of the Criminal Act," and that there is no evidence to prove that the Defendants acquired stolen goods at the court below's statement by Nonindicted Party 1, the prosecutor's protocol of interrogation of the Defendants, and that the prosecutor changed the contents of the protocol of statement against Nonindicted Party 1 and the prosecutor's protocol.

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided.

(1) On March 18, 1976, Defendant 1 was sentenced to 6 months of imprisonment with prison labor for property damage in the Busan District Court and the sentence became final and conclusive on July of the same year, and was 4 criminal records of special larceny in the Busan Prison in addition to the completion of the execution of the sentence on July of the same year, Defendant 1, together with Nonindicted 1, at the office of Nonindicted 17:30 on January 17:30, 1979, reported the network of the Defendant at the office of Nonindicted 3 of the Busan District Court (hereinafter omitted), and Nonindicted 1, upon reporting Nonindicted 3’s net and 45,000 won at the market price of the recording machine owned by Nonindicted 3, which is located inside the house, was stolen.

(2) Defendant 2 was a person who had been sentenced to a fine of KRW 10,000 each twice for the crime of acquiring stolen property. Defendant 2 acquired stolen property at KRW 25,00,00 with the knowledge of the fact that Defendant 1 was stolen from Nonindicted 1 in the management (trade name omitted) of the Defendant at around 20:0 on the same day.

In the facts of the judgment, the facts of the first conviction against Defendant 1 of the first head of the judgment shall be recorded in the notification of fingerprint inquiry to the same accused prepared by the third head of the Public Security Headquarters, and corresponding statements in the court of the original instance, and the remaining facts of the judgment shall be recorded:

1. Statement corresponding thereto at the original trial court by Nonindicted 1’s witness

1. Each protocol of examination of the suspect against the Defendants prepared by the public prosecutor, which corresponds to this;

1. The statement of Nonindicted Party 1 in the prosecutor’s preparation and the statement corresponding thereto;

1. Since the record of Nonindicted 3’s statement in the process of handling affairs by judicial police officers can be acknowledged in full view of the records corresponding thereto, all of the facts of the judgment are proven.

Defendant 1’s judgment below falls under Article 331(2) and (1) of the Criminal Act, Article 362(1) of the same Act, and Article 362(1) of the same Act. Defendant 2’s judgment judgment below constitutes a prescribed imprisonment, and Defendant 1 is subject to repeated crimes. Thus, Defendant 1 is subject to repeated crimes pursuant to Article 35 of the same Act. Defendant 1 is subject to repeated crimes under Article 35 of the same Act. Defendant 2 is subject to repeated crimes within the scope of the term of punishment. Defendant 2 is subject to repeated crimes under Article 35 of the same Act. Defendant 1 is within the scope of the term of punishment. Defendant 2 is subject to repeated crimes, and 15 days of the number of detention days before the sentence of the judgment below under Article 57 of the same Act. However, Defendant 2 is recognized to have a reason to take into account the circumstances, so the execution of the above sentence against the same Defendant shall be suspended for two years from the date the judgment becomes final and conclusive.

It is so decided as per Disposition with the above reasons.

Judges Yoon Young (Presiding Judge) Lee (Presiding Judge)