Whether a modification of the indictment is permitted only within the scope recognized as identical to the facts charged (affirmative), and where there is an application for modification of a indictment to add the facts charged as the facts charged, whether the court shall dismiss the application for modification (affirmative)

Article 298(1) of the Criminal Procedure Act

Supreme Court en banc Decision 93Do2080 Decided March 22, 1994 (Gong1994Sang, 1368), Supreme Court Decision 2012Do14097 Decided September 12, 2013, Supreme Court Decision 2015Do1968 Decided August 29, 2017

Defendant 1 and two others

Defendants

Attorney Lee Gyeong-min et al.

Seoul Southern District Court Decision 2020No250 decided July 16, 2020

The conviction part of the lower judgment against the Defendants is reversed, and that part of the case is remanded to the Seoul Southern District Court.

The grounds of appeal are examined.

1. Where an application for changes in indictment is filed to the effect that amendments to the indictment are permitted only to the extent that the identity of the facts charged is recognized, and that the facts charged are added to the facts charged, the court shall dismiss the application for changes (Article 298(1) of the Criminal Procedure Act). The identity of the facts charged shall be maintained if the social facts, which form the basis of the facts, are the same in basic respect. In determining the identity of these basic facts, the defendant’s act and social factual relations shall be based in mind with the function of the identity of the facts, and normative elements shall also be considered (see, e.g., Supreme Court en banc Decision 93Do2080, Mar. 22, 1994; Supreme Court Decision 2012Do14097, Sept. 12, 2013).

2. The record reveals the following facts.

A. As to the fraud among the facts charged against the Defendants, the prosecutor prosecuted the Defendants on the charge of obtaining a total of KRW 1.86,283,000 from the victims 1.4 times, on the ground that the Defendants conspired with their names in collusion to the effect that they would make a loan by calling to the victims from August 16, 2018 to January 30, 2019, and that they would make a loan at a low interest rate.

B. As to Defendant 1’s fraud during the trial in the first instance, Defendant 1’s false statement to the effect that Defendant 1 would receive the case from the Joint Investigative Headquarters from December 21, 2018 to January 30, 2019 and would protect the property of the scaming crime, and that it would receive and deliver the deposit money. Accordingly, Defendant 2 and Defendant 3 would receive KRW 267 million in total eight times from the victims. As to Defendant 2 and Defendant 3’s fraud, Defendant 2 and Defendant 3 would make a loan at low interest in collusion with the victims from August 23, 2018 to January 30, 2019, and Defendant 3 obtained permission for changes in the indictment from the victims to 14.1.8 billion won in total, and Defendant 2 and Defendant 3 applied for permission for changes in the indictment (hereinafter “instant charges”).

C. Of the facts charged in the instant case, the first instance court found Defendant 1 guilty, Defendant 2, and Defendant 3 not guilty of all of the charges in the instant case.

D. As to the judgment of the first instance, both the prosecutor and the Defendants appealed, and the prosecutor appealed from the judgment of the court of first instance. Article 114 of the Criminal Act applies to the applicable provisions of the Criminal Act during the trial proceedings in the court of the court below, and Article 114 of the Criminal Act to the facts charged, “Defendant 1 constitutes a criminal organization for the purpose of hosting crimes around August 2018, and Defendant 2 and Defendant 3 joined the said criminal organization on or around August 2018, and the Defendants joined the criminal organization by acquiring the means of access, such as physical cards, etc., or opening a large volume of text delivery site in the course of performing the organization of the criminal organization (hereinafter “criminal organization charges”), and the court below reversed the conviction part of the judgment of the first instance and convicted all the charges of the said criminal organization.

3. Examining these facts in light of the legal principles as seen earlier, the facts charged in this case and the facts charged by a criminal organization are different from the facts charged in relation to the crime, such as the date and time of the crime, the form of the act, and the conspiracy relation, and there are significant differences in the nature of the crime. Therefore, as there is no identity of the two facts charged, the modification of the indictment to add the facts charged by the criminal organization to the facts charged in

Nevertheless, the lower court accepted the prosecutor’s application for changes in indictment to the effect that the charges of the above criminal organization are added and convicted of the charges of the criminal organization. In so determining, the lower court erred by misapprehending the identity of the facts charged and the legal principles on changes in indictment, thereby adversely affecting the conclusion

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the part of the judgment below convicting the Defendants is reversed, and that part of 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 Park Sang-ok (Presiding Justice)