Whether the court does not ex officio recognize minor criminal facts than the contents of the facts charged without any changes in indictment procedures.

In a case where a court recognizes a more minor criminal facts included in the criminal facts charged within the scope recognized as identical to the facts charged, and where it deems that there is no concern about substantial disadvantage to the defendant's exercise of his/her right to defense in light of the progress of trial, it may recognize ex officio a criminal facts different from the facts charged as stated in the indictment, even though the indictment has not been modified. However, even in such a case, if the indictment is not punished on the grounds that the facts charged are serious in comparison with the facts charged in the indictment, and if the indictment is not modified on the grounds that it does not change the indictment, it shall not be deemed illegal on the ground that it does not recognize the criminal facts ex officio unless it is acknowledged that it goes against justice and equity in view of the purpose

Articles 254 and 298 of the Criminal Procedure Act

Supreme Court Decision 82Do2119 delivered on November 8, 1983 (Gong1984,48) 90Do1229 delivered on October 26, 1990 (Gong1990,2475) decided May 28, 1991 (Gong191,1831)

Defendant

Prosecutor

Suwon District Court Decision 93No90 delivered on June 17, 1993

The appeal is dismissed.

1. Prosecutor's ground of appeal No. 1

The court below judged that the evidence corresponding to the facts charged in violation of the Punishment of Violences, etc. Act cannot be trusted and sentenced not guilty, and compared with the records and records, the judgment of the court below is justified, and it cannot be viewed that there is an error of law that misleads the facts in violation of the rules of evidence, such as the theory of lawsuit, etc. In conclusion, the court below cannot accept it as it criticizes the selection of evidence and the recognition of facts belonging to the exclusive authority of the court below.

2. Determination on the ground of appeal No. 2

In a case where a court recognizes a more minor criminal facts included in the criminal facts charged within the scope recognized as identical to the facts charged, if it deems that there is no concern about substantial disadvantage to the defendant's exercise of his/her right to defense in light of the progress of the trial, it may ex officio recognize a criminal facts different from the facts charged as stated in the indictment, even if the indictment has not been modified. However, even in such a case, if the indictment is not punished for the reason that the facts charged are serious in comparison with the facts charged in the indictment, and if the indictment has not been modified for the reason that it is not modified, it shall not be deemed unlawful on the ground that the court, ex officio, did not recognize such criminal facts unless it is recognized as significantly contrary to justice and equity in light of the purpose of the criminal procedure, which is to promptly discover substantial truth by due process (see Supreme Court Decision 90Do1229, Oct. 26, 19

In this case, the court below did not determine that the victim was not guilty of the injury as stated in the indictment due to the defendant's assault, but it did not recognize the fact that the defendant committed the assault, such as the victim's chest as stated in the indictment, etc., and therefore, it cannot be deemed that the court below did not deliberate and decide on the point of the assault, and even if it is recognized that the defendant was found that the defendant was guilty of the above assault, in comparison with the crime of the victim's bodily injury, even if it was found that the defendant was fluord by turning his finger, etc., such as the theory of domestic litigation, it cannot be viewed that the court below did not find the defendant guilty of such assault, and therefore, it cannot be accepted the argument that there was an error of law by misunderstanding the legal principles on the identity of the facts charged.

3. Therefore, the prosecutor's appeal shall be dismissed, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Yong-sik (Presiding Justice)