Organization and Activities) The Punishment of Violences, etc. Act

Bans (Habitual Resignation of Organizations, etc.)

The judgment of the court below which acquitted all the defendants of the charges on the grounds that the defendant was not constituted or not constituted a criminal organization even though there is sufficient evidence to find the defendant guilty of the charges, is erroneous in the misapprehension of the rules of evidence, and in the misapprehension of the legal principles of the criminal organization,

2. Determination

(a) Violation of the Punishment of Violences, etc. Act (the composition and activity of an organization, etc.);

(1) Summary of the facts charged

At the same time, the defendant E, a criminal organization, is the leader of the so-called "fung-gu COP". The defendant is the leader of the so-called "fung-gu COP". The defendant D is the executive officer of the wharf of the so-called "fung-gu CO". The defendant is the above-mentioned defendant D, and the remaining defendants are the members of the behavior group of the so-called "fung-gu CO". The violence organization, which was a criminal organization in the military branch of the 1990s, is a crime group, and the violence organization CJP, a crime group, was committed several times, called "Korean War", and most of the members of the CJP were moved to other areas and was organized. At that time, the defendant continued to use the "CJP" as the leader of the CJP, who was employed by the CJP, to exercise credit and control over the local distribution, and the defendant continued to run CJ 200 out of the cJ's age of 30 times.

On the other hand, the defendant (or the executive members of the Gu's 'JPS') tried to form a new violent organization to the defendant E (or the former 'CJP') of the core cause of the organization that he/she had followed by the previous "SPS" organization, and to establish a new violent organization to gather the defendant'sO as an adviser who performs a new advisory or funding role for the defendant's office in the future. Accordingly, the defendant tried to form a new violent organization in order to take their existence in the area where he/she was granted and to play a role in entertainment business located in BB, and to follow his/her friendship, QJS, and PPS, the defendant was followed by his/her friendship, the defendant himself/herself, and then to call a new organization to the defendant, the defendant, the defendant, and the defendant, the defendant, and the defendant, the third party to the PJP, the second party to call a new organization to the defendant, the defendant, the second party to the PJP, and the third party to the P.

2005, 9. 날짜를 알 수 없는 날 상피고인 P은 자신의 친구인 피고인과 함께 부여 일대에서 활동하던 후배 불량배들인 상피고인 V, W, F, X, D, I, Y, Z, G, H, C 및 AV 등과 BB 소재 유흥업소에서 웨이터로 일하던 성명불상자들을 BB 소재 CP 광장으로 모두 소집한 다음 함께 축구를 하고, BB 소재 CQ사우나에서 단체로 목욕을 한 뒤, BB 소재 CR 식당에서 단체로 회식하면서 선후배 간의 단합을 도모하며 과거의 "봉선 화파", "CJ파가 아닌 부여 지역의 새로운 "식구"로 활동할 것을 결의하였다. 상피고인 O는 위와 같이 후배 조직원들이 축구와 회식을 하였는데도 선후배 간의 결속이 부족하다고 생각되자, 다시 2005. 10. 날짜를 알 수 없는 날 CS 소재 상호를 알 수 없는 식당으로 상피고인 E, Q, R, S, T, P, V, W, F, D, Z, Y, I, H, G, C 및 피고인 등을 소집하여 회식하였는데, 그 자리에서 상피고인 E이 "0 형님을 모시고 동생들이 하나가 되어 가족처럼 지내자! 어려운 일이 있으면 형들이 발 벗고 돕고, 선배들이 시키는 일이 있으면 동생들은 내 일처럼 해라! 우리는 한 식구다. 형들이 뒤에 있으니 어디서든지 당당하게 어깨 펴고 살아라!"라는 취지로 건배제의를 하였고, 이어 조직원 전원이 회식하면서 결속을 다지는 등 후배들을 격려하고 선배들에 대한 충성심을 유도하였다. 위와 같은 일련의 결성과정을 통해, 범죄단체 구성 및 활동 등으로 이미 처벌을 받은 상피고인 이는 조직의 배후에서 대소사를 챙기면서 조직의 유지 결속을 지원하는 고문급 간부로, 상피고인 E은 상피고인 이를 모시고 조직 구성원들을 대표하여 통솔하는 두목급 수괴로, 상피고인 P은 상피고인 0, E을 보좌하여 그들의 명령에 따라 조직 구성원들을 실질적으로 통솔하는 부두목급 간부로, 상피고인 D은 선배조직원들의 지시를 받아 소위 행동대원들을 이끄는 행동대장급 간부로, 상피고인 Q, R, S, T, V, F, W, X, I, Y, Z, H, G, C, AV 및 피고인은 행동대원으로 역할을 분담한 다음, 단체 구성원 간의 위계질서를 나이 서열 순으로 확립하고, 기본적으로 위에서 밑으로 연락하는 것으로 각 또래의 리더가 자기 또래의 조직원과 그 바로 아래의 리더에게 연락하는 방식으로 연락체계를 갖추며, 조직의 질서를 유지하기 위하여 "선배를 보면 무조건 90°로 인사를 한다", "선배의 지시에는 무조건 따른다", "싸움에는 절대 지지 않는다", "2년 이상 차이 선·후배 사이에서는 맞담배를 피우지 않는다"는 등의 폭력단체의 행동강령 내지 예의범절 등을 정하고, 조직원간의 단합 및 체력단련을 목적으로 부정기적으로 축구, 족구 및 수영대회 등을 행하며, 타 조직과의 실력대결에 대비하여 자신들이 운행하는 차량, 숙소 등에 흉기를 비치해 놓는 등, 폭력행위를 목적으로 하는 범죄단체인 폭력조직 "부여식구파"를 구성하였다. 상피고인 A은 2009. 9. 날짜를 알 수 없는 날 충남 부여군 BB 소재 CT 식당에서, 폭력조직인 '부여식구파'가 위와 같은 범죄단체임을 알면서도 그 조직원인 BS의 권유를 받고 행동대원으로 가입하였다.

On March 2007, the above defendant A had been aware of the fact that it was a violent organization in BB's CE points located in BB, and was recommended by C and joined as a behavioral member with the knowledge that it was a crime organization as above.

At around 02:00 on July 15, 201, the defendant B, who was aware that he was an organization of violence, was an organization of violence in front of the CUk located in AT, was aware that he was an organization of the above crime, and joined as a member of the behavioral group upon the recommendation of C.

On July 2009, the above defendant AB was aware that he was an organization of violence in BB at the CE main point located in BB, and was recommended by BS, which is an organization of crime, and joined as a member of the behavioral group.

On May 9, 2010, the above defendant AC was aware that it was a violent organization in the CV office located BB around May 9, 2010, and became a criminal organization, and became a member of the behavioral group upon A's recommendation.

(2) The judgment of the court below

The court below made a statement that the above defendants A, C, X, Y, Y, Z, Z, AB, and AV appeared to have joined the organization of the police as a substitute, but some defendants cannot use the above suspect interrogation protocol as evidence, and they denied only the purport of consent and proof, but they did not agree with the above suspect interrogation protocol because they are mixed with the victim's statement as to the separate charges other than the above facts charged. Since the above defendants denies the formation or accession of the whole suspect interrogation protocol, there is no difference between the contents and the whole defendant, and it is difficult to believe that the credibility thereof is doubtful, and it is hard to find it, and after examining the formation of the crime organization or accession based on the statement in the prosecutor's office and this court, the above defendants acquitted all of the facts charged for the following reasons.

① According to the statement at the prosecutor’s office, such as the above defendant X, in relation to the motive and motive of the composition, the salary ray and CJ wave are a crime group against the opposite forces, and the above defendant was a member of the former CJP action group, and the above defendant E was a member of the former CJP action group. However, it is not easy to agree with the fact that the defendant had already been subject to criminal punishment due to suspicion such as the formation of a crime organization, etc., inflicted damage on other persons than himself/herself, such as the exercise of violence, thereby constituting a separate criminal organization.

② In relation to the formation time, the above defendants X et al. stated in the prosecution that the defendant P, W, H, and the defendant et al. were in military service around September 2005, and the defendant et al. passed a resolution to combine them with a new food at the Chinese Eargye of CR, but specifically, it is limited to a simple statement that has any purpose as a crime organization, and it is unclear what contents and system it has been binding, and according to the statements at the investigation agency of the above defendants H et al. and this court, H et al. entered the military around 2004 and was discharged from military service on or around August 2006, and it is doubtful that the above fact was formed as a crime organization for the purpose of violence crime at the above time.

③ In relation to the specific activities of the above defendants A, B, AA, AB, and AC, each of the statements made at the prosecution of the above defendants A, although it is generally acknowledged that such activities are organized for the purpose of violent crimes, the above defendants did not have any external activities such as taking the credit rating or taking the management of the drinking house sales in the given area, but did not have any external activities such as taking part in the union or taking part in the union. In addition, some of the above defendants were admitted to the above organization by taking part in the foregoing organization and taking part in the drinking house regular business as above, and they used money from the drinking house business owner without paying the above organization, and there is no data suggesting that the above defendants attempted to intervene in this right or to devise funds that can be deemed essential for the maintenance and activities of the criminal organization.

④ With respect to the command and command system, the above defendants A, B, X, Z, AB used the name of grix to the ship ship, 90 degrees to the ship ship, personnel management, walp, walp to the ship’s horse, walp to the ship’s horse, and walp to the ship’s horse, walp to the ship’s horse, and walp to the ship’s horse, and the immediate upper number of the machine is prohibited, if any, walp to the military machine, and walp to the military machine, and stated to the effect that the defendants received education in relation thereto. However, in light of the fact that the above code of conduct or wedding was not widely known, there is no doubt that the defendants were actually existing in the "galp," and that the defendants did not know that there was any harm to the defendant who was actually the defendant’s appearance from the office at the time of the investigation, and that the two defendants did not know that the defendants were the defendants who were the defendants of the organization of the Eth election.

In depth, it is difficult to see that it has a leading system based on solid binding force and organizational power as a violent crime organization.

6) In relation to the prosecutor's statement of some defendants, the above defendants A, B, X, AB, etc. stated in the prosecutor's office that "the grant tool is an organization with the purpose of violent crime." However, the issue of whether the defendant X is a legal criminal organization should be carefully determined based on objective evidence and circumstances, not the statement of the above defendants, but the objective evidence and circumstances. In addition, in relation to the details stated in this court as above, the above defendants A acknowledged that the above defendants denied the investigation by the prosecutor's office at the time of the initial investigation by the prosecutor's office and want to promptly hold the suspect's statement based on other people's statement, and the above defendants Eul was the investigator's answer to questions that are different from those written in the protocol, and it is difficult to recognize credibility of the defendant X's statement by the prosecutor's office at the time of the initial investigation by the prosecutor's office.

(C) Judgment of the court below

① Relevant legal principles

The term "organization of a crime group" refers to the formation and establishment of a new crime group. As such, when a new crime group is formed by an existing crime group, it refers to a case where the organization is separated from the existing crime group and constitutes a separate crime group, as it is in a situation where the existing crime group is dissatisfyed or dissatisfyed, it refers to the case where the organization of a crime group in operation is completely changed to the extent that it can be recognized as a separate organization that is not identical with the existing crime group (see, e.g., Supreme Court Decisions 200Do102, Mar. 24, 200; 2004Do805, Apr. 23, 2004; 2009Do1274, Jun. 11, 2009).

An organization whose purpose is to commit a crime provided for in Article 4 of the Punishment of Violences, etc. Act refers to a group organized with a minimum command system that leads the organization or maintains internal order, and even if a group organized with a continuing and command system that consists of many and specified persons, such group shall not be deemed a group of crimes provided for in the same Act unless its members have common purpose for a crime provided for in the same Act (see, e.g., Supreme Court Decisions 97Do1829, Oct. 10, 1997; 97Do1829, Oct. 10, 2004; 2004Do209, Jul. 8, 2004).

② 원심 및 당심에서 적법하게 채택하여 조사한 관련 증거들에 의하여 인정되는 다음과 같은 사정, 즉 ㉮ 일부 "부여식구파"에 가입한 사실을 인정하는 상피고인들의 진술에 의하더라도, 검사가 주장하는 결성시점인 2005. 9.경 모임을 기준으로 할 경우에는 14명, 2005. 10.경 모임을 기준으로 할 경우에는 16명(상피고인 H 제외)에 불과한 상피고인들과 피고인이 광장에 모여 축구를 한 뒤 단체로 목욕을 하고 함께 식사를 하면서 새로운 식구로 활동하기로 하였다는 것으로서, 이러한 사실만으로는 이미 와해된 폭력조직인 "봉선화파"와 "CJ파"의 조직원으로 활동하였던 상피고인 0, E이 "봉선화 파"와 "CJ파"를 추종하던 부여 지역 불량배들을 새로이 규합하여 범죄단체로 평가할 수 있을 만한 견고한 결속력과 조직력을 근간으로 하는 새로운 폭력조직인 "부여식구 파"를 결성하였다고 보기에 부족한 점, 위와 같이 조직원의 수가 많지 않고 최초 14명 내지 16명에서 신규 조직원이 가입하여 현재 20여 명까지 조직원이 증가하였음에도 그 사이에 모든 조직원이 참석하여 결성식 내지 가입식을 개최한 적도 없음은 물론 상피고인 A을 비롯한 후배급 피고인들은 두목이라는 상피고인 E에 관하여 잘 알지도 못하였던 것으로 보이는 점, 다 범죄단체인 폭력조직의 행동강령이나 행동수칙으로 보일만한 내부규율을 정한 것도 없어 보일 뿐만 아니라 조직원 각자의 역할분담이나 연락체계 등을 정한 자료도 없고, 조직원들이 합숙생활을 한 사실도 없는 것으로 보이는 점, 라 범죄단체의 유지 및 활동에 필수적이라고 할 수 있는 자금을 마련하기 위하여 이권에 개입하려고 하였다거나 달리 자금 마련 방안을 강구하였다고 볼 아무런 자료가 없는 점, 아 조직의 배후에서 대소사를 챙기면서 조직의 유지 · 결속을 지원하는 고문급 간부였다는 상피고인 이나, 두목이었다는 상피고인 E, 부두목이었다는 상피고인 P 등이 조직원들의 충성심을 유도 · 유지하기 위하여 하부 조직원들에게 자금이나 일자리를 지원한다거나 조직의 위세를 과시하는 등의 조직적인 범죄행위를 저지른 것도 없는 점, ㉳ 조직원들의 활동이라는 것도 일부 상피고인들이 모여 식사나 축구경기를 하였다는 것, 선배급 상피고인들의 경조사에 함께 참여하였다는 것, 선배급 상피고인들이 후배급 상피고인들을 소집하여 속칭 "줄빠따"를 때렸다는 것, 일부 상피고인들이 주점에서 상무라는 직함으로 술값 수금 및 관리 업무 등의 일을 하면서 일정 기간 동안 매달 돈을 받았다는 것과 자주 외상술을 마셨다는 것, 몸에 문신을 하였다는 것에 불과한 점, 상피고인들 중 일부는 "부여식구파"를 탈퇴하였다고 하면서도 별다른 보복을당하지 않았다고 하는 점 등의 여러 사정을 종합적으로 살펴보면, 피고인과 상피고인들이 "부여식구파'라는 조직을 실제로 결성하였는지 의심스러울 뿐만 아니라, 가사 "부 여식구파"라는 조직을 결성한 것이 사실이라고 하더라도 이는 폭력행위 등 처벌에 관한 법률 제4조에서 정한 폭력범죄단체에 이르지 못한 특정 지역사회에서의 패거리나 모임에 불과할 뿐이고 특정한 범죄를 한다는 공동의 목적 아래 특정 다수인에 의하여 이루어진 계속적인 통솔체계를 갖춘 조직적인 결합체라고 보기는 어렵다.

On the other hand, it is difficult to believe that the statement in the trial of the Z and the DM, which seems to be consistent with the fact that the defendant and the above defendants formed and operated the "assigning mal wave", is a mere abstract or exaggerated statement in light of the above-mentioned facts, and it is insufficient to reject the above recognition even if the statement such as each investigation report submitted in the trial of the party, etc. is combined.

Ultimately, the fact-finding and judgment of the court below are just and acceptable, and there is no error of law such as violation of the rules of evidence and misunderstanding of legal principles as to criminal organizations provided for in Article 4 of the Punishment of Violences, etc. Act.

The prosecutor's argument in this part is without merit.

(b) Violation of the Punishment of Violences, etc. Act;

(1) Summary of the facts charged

Around June 20, 2010, the Defendant stated that “the victim CZ (n, 42 years of age) who is the owner of the business at CY, the main place of which “the Defendant drinks 42 years of age on credit, would drink 42 years of age later,” but did not have any intent to pay a normal drinking price from the beginning by force as an organized member of the de facto faculing faculing force. The Defendant conspiredd the victim as above and received an alcoholic beverage amounting to KRW 400,000 of the market price from the victim who was aware that he was an faculing employee of the “faculing faction” and went back to the match. By doing so, the Defendant took advantage of the power of “faculing facsect,” a violent organization, i.e., a crime organization, faculing force.

In addition, the Defendant got through the following similar means: (a) around July 22, 2010, around 400,000 won from the victim; (b) around October 8 of the same year; (c) around 21 of the same month, around 200,00 won; and (d) over the influence of violent organizations, which are criminal organizations, of the force of force.

On March 201, the Defendant stated to the effect that “the Defendant would drink on credit, and later drink the drinking value” to the victim DB (the 55 years of age) who is a business owner at the DA summary point on the day when it is impossible to know of the date. However, the Defendant did not have any intent to pay the normal drinking value from the beginning by force as an organization member of the crime group. The Defendant conspired with the victim as above, and was provided with the victim who was aware that he was an employee of the "Stong-Stong-Stong-Sto-Sto-Sto-Sto-Sto-Sto-Sto-Sto-Sto-Sto-Sto-Sto-Sto-Sto-Sto-Sto-Sto-Sto-Sto-Sto-Sto-Sto-Sto-Sto-Sto-S to-S to-S to-S to-S to-S to-S to-S to-S to-S to-S to-S to-S to-S to-S to-S to-S to-S to-S.

(2) The judgment of the court below

The court below found the defendant not guilty of all the charges on the ground that there was no evidence to acknowledge each of the charges above and the above facts charged, or there was no other evidence to acknowledge each of the charges. The court below found that each of the above facts charged was not admissible or credibility. The investigation agency and the statement at court of each victims, which correspond to each of the above facts charged, are not admissible for the following reasons.

(1) The police statement of the victim CZ was admitted as evidence by the defendant, and the CZ did not properly reflect the above part of the above statement because it was stated in the court below that "at the time when the police statement was made, the defendant did not want to see that she would have taken an alcoholic beverage on credit," and it was denied the actual authenticity of the above part of the above statement. Therefore, the above part of the above statement cannot be admitted as evidence.

② Even based on the police officer of the victim DB and the court below’s statement, it is difficult to view that the defendant committed the crime of rapion on the facts of the complaint by emphasizing or threatening the DB’s force.

(3) Judgment of the court below

(1) As seen earlier, even if the Defendant and the upper accused either did not form or form a “displacemention”, the above “displacemention” does not constitute a criminal organization as provided by Article 4(1) of the Punishment of Violences, etc. Act. As such, the part of the facts charged premised on the premise that there is no proof of crime, and thus, all of them are acquitted.

② In order for the facts charged to be recognized as a crime of attack, specific contents of the facts charged should be included as a means of attack to the extent that it objectively limits the freedom of decision-making or interferes with the freedom of execution of the will. As seen earlier, unless it is found that the part of the facts charged, which stated as a means of attack, “influence from the victims, who known that the defendant was a victim of the crime, by putting the violence organization grant type and the power of strike, which is a crime organization, was committed,” as stated in the above facts charged, “Influence from the victims, who were aware that he was a victim of the crime of assault,” the means of attack under the Criminal Act, stating that “influence, drinking, drinking, and drinking, would later be done.” As such, it cannot be deemed that the Defendant’s act of taking advantage of such means, such as making a fluenite, or giving notice of harm to the victims, cannot be deemed to have been committed through a crime of assault or threat of harm, etc., and thus, it cannot be deemed as a specific crime of assault or punishment. (inf.).

③ Furthermore, the lower court, based on its stated reasoning, deemed that there was no admissibility or credibility of the evidence-related evidence-related laws of the victims regarding each statement by the victims. In light of the records, the lower court’s determination is just and acceptable, and it also appears that DM witness of the party trial stated that “the victims have a relationship of relationship with the defendants and the defendants. The victim CZ stated that “the victims have a relationship of relationship with the defendants and the defendants. The victims have engaged in a main business with some of the defendants.” It does not seem that there was any error of law.

Ultimately, the lower court’s judgment that acquitted all of the facts charged is justifiable, as there is no evidence to prove the above facts charged. The Prosecutor’s allegation in this part is without merit.

3. Conclusion

Since the prosecutor's appeal is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Cho Young-hoon

Judges Excursion Ship Owners