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

[2] The case holding that although the facts charged of larceny and the facts charged of the charge of the crime of the crime of the transportation of stolen added as a preliminary charge by the application for changes in indictment are identical to the basic facts, it is obvious that the indictment of the changes in indictment should be pronounced not guilty of all primary and preliminary facts, it did not affect the conclusion of the judgment

[1] According to Article 298 (1) of the Criminal Procedure Act, since "the prosecutor may add, delete, or change charges or applicable provisions of Acts stated in the indictment with permission of the court," "the court shall permit them to the extent that it does not harm the identity of the facts charged," the above provision should be interpreted as "the court shall permit the application for change of indictment by the prosecutor unless the application for change of indictment by the public prosecutor does harm the identity of the facts charged." The identity of the facts charged is maintained as it is in the same sense in the basic aspect of social factual relations which form the basis of the facts. However, in determining the identity of the facts charged, the defendant's act and social factual relations shall be based in consideration of the function of identity of the facts, and the normative elements shall also be considered.

[2] The case holding that although the facts charged of larceny and the facts charged of the charge of the crime of the crime of the transportation of stolen added in the preliminary form with the application for changes in indictment are identical to the basic facts, it is obvious that the indictment of the changes in indictment should be pronounced not guilty of the whole primary and preliminary facts, it did not affect the conclusion of the judgment

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

[1] Supreme Court en banc Decision 93Do2080 decided Mar. 22, 1994 (Gong1994Sang, 1368), Supreme Court Decision 95Do1270 decided Jun. 28, 1996 (Gong1996Ha, 2424), Supreme Court Decision 96Do88 decided Aug. 23, 1996 (Gong196Ha, 2935), Supreme Court Decision 97Do3297 decided Jun. 26, 1998 (Gong198Ha, 2935), Supreme Court Decision 97Do9395 decided Apr. 13, 1999 (Gong198Ha, 204)

Defendant

Prosecutor

Attorney Lee Young-hoon

Seoul District Court Decision 97No5685 delivered on April 22, 1998

The appeal is dismissed.

The grounds of appeal are examined.

On the first ground for appeal

If we review the reasoning of the judgment below in comparison with records, we affirm the measures that the court below acquitted the defendant on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, and there is no violation of the rules of evidence as pointed out.

This ground of appeal cannot be accepted.

On the second ground for appeal

Article 298 (1) of the Criminal Procedure Act provides that "the prosecutor may add, withdraw, or change charges or applicable provisions of Acts stated in the indictment with the permission of the court," and that "the court shall permit them to the extent that it does not impair the identity of the facts charged." Thus, the purport of the above provision is to interpret that the prosecutor's application for changes of indictment should be permitted unless the prosecutor's application for changes of indictment does harm the identity of the facts charged (see Supreme Court Decision 75Do2712, Oct. 23, 1975). The identity of the facts charged is maintained as it is in basic aspect of social facts that form the basis of the facts, but in determining the identity of these basic facts, the defendant's act and its social factual relations shall be based in mind with the function of the identity of the facts, and the normative elements shall also be taken into account (see Supreme Court Decision 97Do3297, Jun. 26, 199).

However, according to the records, although the prosecutor partly revised the facts charged prior to the fifth trial date of the court below and applied for the amendment of indictment to the effect that the charges for the transportation of stolen goods are added, the court below rejected the prosecutor's appeal without permission. The original facts charged against the defendant are as follows: "In collaboration with the non-indicted on February 2, 1997, at around 00:0, 400, the defendant's life-long 400, the maximum number of the victims owned by the non-indicted 5, 1760, 1760." The facts charged in the preliminary charge are different from the defendant's legal interests at around 01:40, Feb. 3, 1997 (the time and place of the transportation of stolen goods at around 01:40, Feb. 2, 1997). The defendant's act of transportation of stolen goods at the same time and at the same time and at the same time as the victim's 397,000,0000,000.

However, according to the reasoning of the judgment of the court of first instance maintained by the court below and the records, the defendant is consistently changing from the phone of the above non-indicted, at around 01:40 on February 2, 1997, to whether the above non-indicted was stolen, at the time and place indicated in the indictment, and at around 01:40 on February 2, 1997, the defendant was arrested with the above non-indicted, who was sitting the above non-indicted 5 C 1760 on the driver's seat in the Newcheon-gu, Dobcheon-gu, Dobcheon-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-si, and at the time and place of the above non-indicted 398, and there seems to be insufficient evidence to prove that the above non-indicted was closely related to each of the above preliminary charges, and there seems to be lack any other evidence to prove the facts charged.

In such a case, it is clear that the court below ordered the prosecutor's modification of the indictment and deliberated on the additional charges, and eventually sentenced the prosecutor not guilty of the primary and preliminary charges. Thus, the court below's measures maintaining the first instance court's acquittal of the above charges before the modification without permission of the prosecutor's modification of the indictment are unlawful in misunderstanding the legal principles on the modification of the indictment, but it is difficult to see that it affected the conclusion of the judgment. Accordingly, the prosecutor's grounds for appeal on this part cannot be accepted

Therefore, the appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices.

Justices Song Jin-hun (Presiding Justice)