[1] Whether it can be recognized as a co-principal without modification of an indictment for a single criminal offense (affirmative with qualification)

[2] The case holding that it is necessary to amend a bill of amendment in order to recognize the charges for a single criminal offense as a co-principal

[1] In a case where the court acknowledges that the defendant was prosecuted for a single crime in collusion with other persons to commit the same crime, if there is a concern that the defendant might have a substantial disadvantage in exercising his/her right of defense, it is necessary to

[2] The case reversing the judgment of the court below which held otherwise on the ground that the procedure for modification of indictment constitutes a case where it is necessary to recognize the charges as a single criminal defendant

[1] Article 298 of the Criminal Procedure Act / [2] Articles 298 and 364 of the Criminal Procedure Act

[1] Supreme Court Decision 90Do1977 delivered on May 28, 1991 (Gong1991, 1820) / [2] Supreme Court Decision 83Do1441 delivered on July 26, 1983 (Gong1983, 1384) Supreme Court Decision 92Do218 delivered on December 22, 1992 (Gong1993, 655)

Defendant

Defendant

Attorney Yoon Young-young

Suwon District Court Decision 95No889 delivered on April 18, 1996

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

Defendant’s defense counsel’s grounds of appeal

1. On the first ground for appeal

Examining the evidence of the court below and the court of first instance based on the records, the court below's decision that maintained the first instance court which recognized the criminal facts stated in the first paragraph (a) of the judgment of the defendant in the judgment of the court of first instance is just, and there is no violation of the rules of evidence, such as the theory of lawsuit, incomplete deliberation, or misunderstanding of legal principles, and the defendant provided food to the elector as stated in the judgment of the court of first instance, paid the food cost to the elector, and paid the food cost, and it does not constitute a crime merely because

As pointed out in the family theory, even though the defendant would increase the number of directors of an association allocated to the head of the association in head of the association in head of the association, and there was no request for supporting and requesting him, as long as it is acknowledged that the defendant provided food, etc. to the head of the association as stated in the first instance court for the purpose of being elected as the head of the association, the defendant's above constitutes a crime in violation of Article 51 (1) of the former Agricultural Cooperatives Act (amended by Act No. 4819 of Dec. 22, 1994) and therefore, it does not affect the conclusion of the judgment. The argument is without merit.

2. On the second ground for appeal

According to the reasoning of the judgment of the court below, the court below dismissed this part of the defendant's appeal on the following grounds: (a) by inserting "in collusion with the non-indicted 1 and the non-indicted 2" between the non-indicted 1's item (d) of the criminal facts of the first instance as stated in the judgment of the court of first instance and 'the non-indicted 1 and the non-indicted 2' during the 7th of the same month; and (b) even if it is acknowledged that the defendant committed the same criminal act as the case in collusion with other persons, such as this case, the defendant's non-indicted 1 and the defendant did not cause any substantial disadvantage in exercising his right to defense; (c) in such a case, it is not necessary to amend a bill of indictment; and therefore, (d) even if the prosecutor committed the criminal act in collusion with the above non-indicted 1 and the non-indicted 2 in the judgment of first instance as stated in the judgment

In a criminal trial, the facts stated in the facts charged as stated in the indictment and facts added or changed by the amendment of indictment in accordance with the indictment, and the facts identical to the facts charged are stated as the facts charged. Even if the facts are recognized as identical to the facts charged, the facts that do not become the object of the trial in reality cannot be acknowledged as different from the facts charged at will by the court, unless the court recognizes the facts as stated in the above indictment or the amendment of indictment as the facts charged, even if there is no possibility that substantial harm to the defense of the defendant can be caused to the defendant. In order to recognize the facts, it is necessary to change the indictment. Thus, even in case where the court recognizes that the facts prosecuted as the sole offender committed the same crime in collusion with other persons, it is necessary to change the indictment if there is a concern that the defendant's exercise of his/her defense is likely to be affected (see Supreme Court Decision 90Do197

However, the summary of the facts charged in this case before the amendment of the indictment was made is that the defendant alone provided entertainment, and the facts acknowledged by the court below are that the defendant offered entertainment in collusion with the above non-indicted 1 and the non-indicted 2. According to the records, it is recognized that the person who arranged meetings in the above temporary location was the above non-indicted 1, and that the above non-indicted 2 paid food expenses after offering the above entertainment was the over-the-counter branch with the complaint. Meanwhile, the defendant was allowed to attend the above gathering at the recommendation of the above non-indicted 1, and there is a change in the fact that the above non-indicted 1 did not actually paid the food expenses, and even if he did not actually paid the food expenses, it is found that the defendant was guilty of the above facts of public offering with the above non-indicted 1 and 2. Thus, it would be likely that the court's recognition as a co-principal with the above non-indicted 1 and 2 without changing the indictment

Therefore, this case constitutes a case where it cannot be recognized as a co-principal without a modification of an indictment. In fact, since the subject of the trial changes since the amendment of an indictment was made, the court below should reverse the judgment of the court of first instance and make a decision ex officio after examining the changed facts charged. However, the court below's decision to dismiss the appeal without reversal of the judgment of the court of first instance is erroneous in the misapprehension of legal principles as to the elements of the amendment of an indictment and the scope of the judgment of the appellate court, and the arguments on this point are with merit.

3. Conclusion

Therefore, among the judgment of the court below, the part concerning the facts constituting the crime listed in paragraph (d) of Article 1 of the judgment of the court of first instance cannot be maintained as is. Since the court below rendered a single sentence with the facts constituting the crime as well as the remaining facts constituting concurrent crimes, the whole judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination, and it is so

Justices Shin Sung-sung (Presiding Justice)