[2] The case where the admissibility of evidence is recognized as being "when a person is unable to make a statement by appearing in the court in the official ruling under Article 314 of the Criminal Procedure Act

[3] The meaning of "criminal organization" under Article 4 of the Punishment of Violences, etc. Act

[2] In a case where a person who needs to make a statement has a certain residence but fails to comply with summons of the court, and an interrogation at the court is impossible due to compulsory appearance, etc., or where the court fails to serve a witness summons on the person who needs to make a statement on several occasions and thereby requested the detection of the location of the person, but the location was unknown, the request for the detection of the location constitutes "when it is impossible to make a statement by attending the court in the official ruling under Article 314 of the Criminal Procedure Act." Thus, in a case where there is little room for false entry in the preparation of the contents of the statement or protocol, and there is a specific and external circumstance to guarantee the credibility or ar

[3] The crime organization under Article 4 of the Punishment of Violences, etc. Act refers to an organized body with a continuous and minimum command system, which has been formed by many specified persons under the common purpose of committing a crime under the same Act.

1. The organization of a criminal organization and the point of violation of the Punishment of Violences, etc. Act due to joining;

A. As to the assertion that the facts charged are not specified

The purpose of the law, which stipulates the date, time, place, and method of a crime, to specify the facts charged, is to facilitate the exercise of the defendant's right to defense. Thus, it is sufficient that the facts charged are stated to the extent that it can be distinguished from other facts by integrating these elements, and even if the date, time, place, and description of a crime are not explicitly stated in the indictment, it does not go against the above degree, in light of the nature of the crime charged, and in cases where it is deemed that the general indication is unavoidable in light of the nature of the crime charged, and it does not interfere with the defendant's exercise of his right to defense, the indictment cannot be deemed unlawful since the contents of the prosecution are not specified (see Supreme Court Decisions 91Do2085, Oct. 25, 191; 94Do1853, Sept. 23, 194; 95Do13, Mar. 17, 1995, etc.).

Examining the facts charged in violation of Article 4(1) of the Punishment of Violences, etc. Act, in light of the record, in the instant case, the defendants organized or joined an organization aimed at committing the crime of violence, etc., the facts charged are clearly stated in detail the date, time, place, method, etc. of the crime, so it is possible to distinguish them from other facts of crime, and it cannot be deemed that the defendants violated their right of defense within the limit of the scope of defense. Thus, there is no error of law in the misapprehension of legal principles as to the specification of facts charged

B. As to the assertion of violation of the evidence law

The suspect interrogation protocol prepared by the defendant on the suspect who became the defendant in the court room is admissible unless there is any reason to suspect that the defendant's statement recorded in the protocol has not been made voluntarily, and in the case where there is a dispute as to whether the defendant's statement is voluntary or not, the court shall render a judgment with free evaluation of evidence, taking into account the form and contents of the protocol in question, the defendant's academic background, career, occupation, social status, intelligence level, etc. (refer to Supreme Court Decisions 93Do318 delivered on February 8, 1994; 95Do208 delivered on November 10, 195, etc.). Examining the evidence and the record, each suspect interrogation protocol prepared by the public prosecutor in the court below is acknowledged as authentic since the above defendants' signature and unmanned on each protocol were admitted by the court of the court below, and it is not reasonable to view that the above defendants' testimony or evidence was made in light of the motive or process of confession made before the public prosecutor, and there is no objective evidence of the defendant's statement as evidence.

In addition, in cases where a person who needs to make a statement has a certain residence but fails to comply with the summons of the court and the arrest warrant is not executed even if the arrest warrant is made, or where the court entrusted the detection of the person who needs to make a statement over several occasions and the location of the witness was unknown, it constitutes "when it is impossible to make a statement by attending the court in the official ruling prescribed in Article 314 of the Criminal Procedure Act". Thus, in cases where there is little room for false entry in the preparation of the contents of the statement or protocol, and there is a specific and external circumstance to guarantee the credibility or decentralization of the contents of the statement, the admissibility of the statement is recognized (see Supreme Court Decisions 95Do523 delivered on June 13, 1995, 95Do2340 delivered on December 26, 195, etc.), and the court below did not admit the credibility of the above statement or the witness's statement that was made before and after the arrest warrant was not executed as evidence, but did not admit the above contents of the statement or the witness's statement as evidence.

Therefore, as pointed out in the judgment of the court below, there is no error of law in violation of the law of evidence, and there is no reason for both defendants 2, 3, and 5 as to this point.

C. As to the assertion of mistake of facts and incomplete hearing due to violation of the rules of evidence

Examining the adopted evidence of the first instance court maintained and cited by the court below in light of the records (excluding the statements made by Hanwon District Court 96 seconds369, 96 seconds179 each of the witness examination records in the witness examination records in the witness examination records in the witness examination records prior to the date of the first trial before the date of the first trial in Sungnam-si), the defendants organized or joined a crime organization called "new comprehensive market strike" with the name of "the head of the wharf or the behavior level of the defendant 3, the defendant 1, and the defendant 5 as the executive members of the wharf or the behavior level of the defendant 2, and the defendant 4 as a acting representative, and there is no error of misconception of facts or incomplete deliberation due to the violation of the rules of evidence, such as the theory of litigation. The defendants' arguments on this issue are without merit.

D. As to the assertion of misapprehension of the legal principles on criminal organizations

The crime organization under Article 4 of the Punishment of Violences, etc. Act refers to a systematic combination with a continuous and minimum common system, which is formed by many specific persons under the common purpose of committing a crime under the same Act (refer to Supreme Court Decisions 94Do1853 delivered on September 23, 1994; 96Do923 delivered on June 25, 1996, etc.). The court below duly confirmed that the defendants formed a "comprehensive market strike" by setting the roles of leader, executive officers, acting members, etc. and setting the organizational code of conduct, etc., and therefore, it constitutes a crime organization under Article 4 of the Punishment of Violences, etc. Act, which is a combination with a continuous and organizational common system with the aim of violent crimes.

Therefore, the court below is just in finding the defendants as constituting a criminal organization under the above provision of the law or joining the criminal organization, and there is no error in the misapprehension of legal principles as to the criminal organization such as the theory of lawsuit, so the defendants' arguments about this issue are without merit.

2. The risk of repeating the offense and the point of unfair sentencing

The court below held that the above defendant 1's prior conviction satisfies the requirements of Article 5 (1) and (2) of the Social Protection Act in the first head of the crime as stated in the judgment, and still committed the crime of this case, which is a crime of the same kind or similar to the previous crime, within a short time after the execution of the final sentence was completed, and that there is a risk of re-offending under Article 5 of the Social Protection Act, considering the defendant's frequency, contents, habitualness of the crime of this case, the defendant's age, character and conduct, education degree, occupation, family relation, living environment, etc.

In addition, since the above defendant was sentenced to imprisonment with prison labor for less than 10 years, the above defendant cannot be deemed as a legitimate ground of appeal that the sentencing is excessive and unfair. Therefore, the defendant 1's argument on this issue is without merit.

3. Point of interference with business;

Examining the adopted evidence by the court of first instance maintained by the court below in light of the records, since it is possible to fully recognize the crime of obstruction of business as to Defendant 2, the judgment of the court below does not contain any error of law that affected the conclusion of the judgment by mistake of facts or omission of judgment due to violation of the rules of evidence, such as the theory of lawsuit, etc.

4. Violation of the Food Sanitation Act;

According to the records, the crime of the Food Sanitation Act in the judgment against Defendant 3 can be fully recognized, and the facts charged are clearly stated in all the time, place, method, etc. of the crime, so it is possible to distinguish them from other facts and it cannot be deemed that the above defendant violated his right of defense. Thus, the judgment of the court below is not erroneous in the misapprehension of legal principles as to the mistake of facts due to violation of the rules of evidence or the specification of the crime, such as the theory of lawsuit,

5. Conclusion

Therefore, all appeals by the Defendants are dismissed, and part of the number of detention days after the appeal shall be included in the imprisonment of the court below against the above Defendants. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Chocheon-sung (Presiding Justice)