[1] Whether the court should grant permission where the prosecutor's application for modification of indictment does not harm the identity of the facts charged (affirmative)

[2] The case holding that it is unlawful that the prosecutor's application for modification of indictment added only the method of deception among the charges of fraud, and thus rejected the application even though it does not go beyond the identity of the charges

[1] Article 298(1) of the Criminal Procedure Act provides that "the public prosecutor may add, withdraw, or change charges or applicable provisions of Acts stated in the indictment with permission of the competent court. In this case, the court shall grant permission to the extent that the identity of the charges is not disturbed." Thus, the court must grant permission unless the public prosecutor's application for changes in indictment does harm the identity of the charges.

[2] The case holding that the prosecutor's application for modification of indictment was unlawful even if it did not go beyond the identity of the facts charged because it added only the method of deception among the facts charged for fraud

[1] Article 298(1) of the Criminal Procedure Act / [2] Article 298(1) of the Criminal Procedure Act

[1] Supreme Court Decision 75Do2712 decided Oct. 23, 1975 (Gong1975, 8730)

Defendant

Prosecutor

Seoul District Court Decision 98No9126 delivered on December 30, 1998

The part of the judgment of the court below not guilty is reversed, and that part of the case is remanded to the Seoul District Court Panel Division. The remaining grounds of appeal are dismissed.

1. The court below is justified in maintaining the judgment of the court of first instance which acquitted the defendant on the grounds that there is no proof of facts constituting the crime among the facts charged of this case, and there is no error in violation of the rules of evidence. Therefore, the grounds of appeal on this point are not accepted

2. The lower court rejected the prosecutor’s appeal on this part of the facts charged in the instant case, by maintaining the first instance judgment that acquitted the Defendant on the grounds that there was no proof of criminal facts.

However, Article 298(1) of the Criminal Procedure Act provides that "the public prosecutor may add, withdraw, or change facts charged or applicable provisions of Acts stated in the indictment with permission of the competent court. In this case, the court shall grant permission to the extent that the identity of the facts charged is not disturbed." Thus, the court must grant permission unless the public prosecutor's application for changes in indictment does not impair the identity of the facts charged (see Supreme Court Decision 75Do2712, Oct. 23, 1975).

In this case, the facts charged by the prosecutor first charged are as follows: (a) the defendant presented a promissory note with a forged endorsement of KRW 300 million in the name of gambling at the Mutual Saving and Finance Company around June 17, 1997, as if he actually endorsed the promissory note with a forged endorsement of KRW 300 million in the name of gambling at the same time; and (b) as if he actually endorsed the promissory note with a genuine endorsement, he presented it to the Simop, who is an employee of the above credit cooperative, to the above credit cooperative; (c) is different from the seal imprint on which the seal imprint was reported; (d) it is a false letter that the letter of gambling would be wrong with the seal imprint affixed; and (e) it belongs to the Simop, and (e) he received KRW 297,698,631 on a discount basis; and (e) the facts charged by the court below which applied for changes in the indictment are all the same as mentioned above, and thus, the court below did not have the ability to make a settlement without the original intent or the payment date.

Nevertheless, the court below did not reach this and upheld the judgment of the court of first instance which acquitted the original facts charged without rejecting the prosecutor's application for changes in indictment. In this regard, the court below erred by misapprehending the legal principles on changes in indictment, which led to failure to exhaust all necessary deliberations, which affected the conclusion of the judgment. Accordingly, the ground of

3. Therefore, the part of the non-guilty part of the judgment of the court below is reversed, and that part of the case is remanded to the court below. The remaining appeal is dismissed and it is so decided as per Disposition

Justices Shin Sung-sung (Presiding Justice)