The case reversing the judgment of the court below on the ground that it is unlawful for the prosecutor to deny the application for changes in the indictment of embezzlement with the same factual basis as the charges of breach of trust.

In the facts charged before and after the alteration, the prosecutor applied for the amendment of the indictment in breach of trust, and there is an error of misunderstanding the legal principles on the amendment of the indictment where the court below did not permit the prosecutor's application for the amendment of the indictment and acquitted the defendant as to the embezzlement without the prosecutor's permission for the amendment of the indictment, since the basic facts that the defendant sold, received, and consumed voluntarily with the victims, and the identity of the charges was not undermined.

Article 298 of the Criminal Procedure Act, Article 355 of the Criminal Act

A

Prosecutor

Law Firm B, Attorney C

Daegu District Court Decision 89No264 delivered on June 2, 1990

The judgment below is reversed, and the case is remanded to Daegu District Court Panel Division.

We examine the prosecutor's grounds of appeal.

The court should permit the modification of the indictment of the prosecutor before closing the trial to the extent that it does not harm the identity of the facts charged.

According to the reasoning of the judgment below, the court below found the defendant not guilty on the ground that there was no proof as to the facts charged that the defendant, as stated in the indictment, voluntarily consumed and embezzled the above money as living expenses, etc. five times until February 17, 1988, while selling the amount of KRW 9,989,00 in the market price of KRW 2,427km with the victim D, Dong E, etc. around 20:0 on April 22, 1982, and collecting the amount of KRW 1,20,000 from the price of KRW 1,20,000, out of the price of KRW 270 on December 27, 1983.

However, according to the records, the prosecutor entered into an agreement on May 26, 1989 that "the defendant should have purchased and sold agricultural products, such as the victim D and E, from the beginning of the beginning of April 1982 with the victim D and E, and should have distributed profits and losses to them. The defendant should have received the same amount of 9,989,000 won from the market price of 2,427 km and the victims jointly purchased from the above victims on April 22, 1982, and should have received the same amount of 6,00,00,000 won from the above victims as the debtor, and should have received the same amount of 3,00,000 won from the above victims, and should have received the same amount of 3,00,000 won from the above victims, and then the defendant should have received the same amount of 10,000 won from the above victims' money in breach of trust, and should have received the same amount of 20,000 won without delay.

Nevertheless, the court below's determination of not guilty of the facts charged in embezzlement without permission of the prosecutor's application for changes in indictment is erroneous in misunderstanding the legal principles of changes in indictment and failing to exhaust all necessary deliberations.

Therefore, without examining the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon So-young (Presiding Justice)