If the prosecutor's application for changes in indictment is within the scope of "the identity of the facts charged" (affirmative), the court shall permit the application (affirmative); and the method of determining the identity of the facts charged.

Article 298(1) of the Criminal Procedure Act

Supreme Court en banc Decision 99Do375 Decided April 13, 1999 (Gong1999Sang, 1368), Supreme Court Decision 98Do1438 Decided May 14, 1999 (Gong1999Sang, 1211), Supreme Court Decision 2010Do1659 Decided April 13, 2012

Defendant

Prosecutor

Busan District Court Decision 2012No736 Decided November 1, 2012

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

The grounds of appeal are examined.

1. Article 298(1) of the Criminal Procedure Act provides that "the prosecutor may add, delete, or change charges or applicable provisions of Acts stated in the indictment with permission of the court. In this case, the court shall grant permission to the extent that the identity of the charges is not undermined." Thus, if the prosecutor's application for changes in indictment is within the scope of the identity of the charges, the court shall grant permission (see Supreme Court en banc Decision 99Do375 delivered on April 13, 199, etc.). The identity of the charges subject to permission shall be maintained if the social factual relations, which form the basis of the facts, are the same in basic terms. In determining the identity of these basic factual relations, the defendant's act and the social factual relations shall be based in consideration of the function of the identity of the facts, and the normative elements shall also be considered (see Supreme Court Decision 93Do2080 delivered on March 22, 199, etc.).

2. The court below rejected the prosecutor's application for changes in indictment which added the ancillary facts charged to each of the facts charged in the instant case, and rejected the prosecutor's appeal on the grounds that there is no proof of the facts charged.

3. However, in light of the above legal principles, it is difficult to accept the court below's rejection of the prosecutor's application for changes in indictment.

First of all, according to the records, the original facts charged (Fraud by using computers, etc. and Digital Signature Act) are as follows: “The defendant obtained the consent of the non-indicted insured who purchased insurance premium of one million won per month of the same Yang Life Co., Ltd. through the defendant, and obtained the loan of KRW 10 million from the non-indicted insured on or around March 18, 2010, and obtained the loan of the terms and conditions from the non-indicted insured with the non-indicted insured's authorized certificate, and the non-indicted insured who received the deposit money again from the non-indicted insured with the non-indicted insured's authorized certificate in the head of this case to the account managed by the defendant immediately transfer the above money to 5 million won and the difference between the actual amount of the loan and KRW 17,046,680 from the 206th day of August 5, 2010 to the 206th day of the amendment of the indictment, thereby obtaining the first consent from the non-indicted 2, who obtained the approval of KRW 206868,006.

Although the aforementioned two facts charged are different from each other in terms of the form of action or the legal interest of damage, the entire facts are the series of acts in which the Defendant intended to raise necessary funds by using the insurance purchased by the Nonindicted Party, and their basic facts are the same. In addition, the original facts charged is premised on the premise that the Defendant did not obtain the consent from the Nonindicted Party for the use of the authorized certificate, etc. relating to the terms and conditions loan, etc., while the facts charged that the prosecutor intended to add and change as a preliminary one are based on the premise that the above consent was obtained, and thus, the identity of the facts charged is recognized from a normative standpoint.

Therefore, the court below should have accepted the prosecutor's application for changes in indictment and should have deliberated on the revised charges. Nevertheless, the court below rejected the prosecutor's application for changes in indictment as above. The court below erred by misapprehending the legal principles on the identity of the facts charged or changes in indictment, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit.

4. The judgment of the court below is reversed without examining the remaining grounds of appeal, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)