[Defendant]
[Appellant] Defendant
[Defense Counsel] Attorney Park Sang-woo
[Judgment Below] Seoul Central District Court Decision 2016No3164, decided December 23, 2016
[Order]
The judgment below is reversed, and the case is remanded to the Seoul Central District Court.
[Reasoning]
The grounds of appeal are examined.
1. Determination on the grounds of appeal
Article 298(1) of the Criminal Procedure Act (형사소송법) provides: "The public prosecutor may, with the permission of the court, add, withdraw, or amend the facts charged or the applicable statutes stated in the bill of indictment. In such a case, the court shall grant permission to the extent that this does not impair the identity of the facts charged." Accordingly, so long as the public prosecutor's request to amend the bill of indictment does not impair the identity of the facts charged, the court must grant permission for such amendment. The identity of the facts charged is maintained so long as the social facts underlying the facts charged are identical in their basic aspects; in determining the identity of such basic facts, the court must bear in mind the function served by the identity of the facts, and must consider the defendant's conduct and the underlying social facts as the basis, while also taking normative elements into account (see Supreme Court en banc Decision 93Do2080, decided March 22, 1994, etc.).
According to the record, the public prosecutor initially requested a summary order (약식명령) on the following criminal facts: "The Defendant is an employer who, from July 26, 2012 to March 31, 2013, operated a wholesale and retail business as the representative of Nonindicted Company 1, regularly employing three workers. When a worker retires, the employer must, absent an agreement between the parties to extend the payment deadline, pay all money and valuables including wages within 14 days from the date of retirement. The Defendant failed to pay, within 14 days from the date of retirement and absent any agreement between the parties to extend the payment deadline, a total of KRW 11,550,000 in wages owed to Nonindicted Person 2, a worker who worked at the above workplace from July 26, 2012 to June 26, 2013, consisting of KRW 600,000 for December 2012, KRW 3,650,000 for January 2013, KRW 3,650,000 for February 2013, and KRW 3,650,000 for March 2013."
However, in the court below, the public prosecutor filed the instant request to amend the bill of indictment, changing the criminal facts as follows: "The Defendant is an employer who, from July 26, 2012 to March 31, 2013, operated a wholesale and retail business as the representative of Nonindicted Company 1, regularly employing three workers. Wages must be paid at least once a month on a fixed date. Nevertheless, the Defendant failed to pay, at least once a month on a fixed date, a total of KRW 11,550,000 in wages owed to Nonindicted Person 2, a worker who worked at the above workplace from July 26, 2012 to June 26, 2013, consisting of KRW 600,000 for December 2012, KRW 3,650,000 for January 2013, KRW 3,650,000 for February 2013, and KRW 3,650,000 for March 2013." The court below granted permission for this amendment at the second trial date on November 9, 2016.
Both the facts charged before and after the amendment of the bill of indictment in this case concern the same failure to pay identical wages to the same worker, and differ only in the legal evaluation of whether the Defendant violated the duty to settle money and valuables after the worker's retirement or the duty to pay wages at least once a month. Furthermore, since the nature of the offense and the legal interest infringed are also similar, even taking into account the circumstances pointed out in the grounds of appeal, the basic facts may be deemed identical.
In the same vein, the court below's measure of granting permission for the amendment of the bill of indictment, having found that the identity between the facts charged before and after the amendment is recognized, is justified, and there is no error such as a misapprehension of the legal principles concerning the amendment of the bill of indictment.
2. Ex officio determination
A. Under Article 323(1) of the Criminal Procedure Act, the reasoning of a guilty judgment must clearly state the criminal facts, the gist of the evidence, and the application of statutes, and where, upon rendering a guilty judgment, any one of these is entirely omitted from the reasoning, this constitutes a violation of law affecting the judgment as prescribed in Article 383, item 1 of the Criminal Procedure Act, and is grounds for reversal (see Supreme Court Decision 2009Do3505, decided June 25, 2009; Supreme Court Decision 2010Do9151, decided October 14, 2010, etc.).
B. According to the reasoning of the judgment below, it can be seen that the court below, on the ground of the public prosecutor's amendment of the bill of indictment, reversed the first instance judgment ex officio and rendered a guilty judgment against the Defendant, but in the reasoning of that judgment stated only the criminal facts and the gist of the evidence, omitting the application of statutes. In light of the legal principles set forth above, the judgment below contains an error that affected the judgment.
3. Conclusion
The judgment below is reversed, and the case is remanded to the court below for further hearing and determination, this Decision being rendered as stated in the Order by the unanimous opinion of the participating Justices.
Justice Park Bo-young (Presiding Justice), Park Byung-dae, Kwon Soon-il, Kim Jae-hyung (Justice in Charge)