(영문) 대법원 2018.09.13 2018도7658



All appeals are dismissed.


The grounds of appeal are examined (to the extent of supplement in case of supplemental statements in each written opinion, coal application, and supplemental statements in the grounds of appeal filed after the deadline for submitting the grounds of appeal).

1. Regarding the prosecutor's grounds for appeal

A. Determination as to the assertion that the Defendant and the applicant for the attachment order and the protective order A (hereinafter “Defendant A”) constitute a joint principal offender for the crime of murder (1) The joint principal offender under Article 30 of the Criminal Act jointly commits a crime. In order for the joint principal offender to be established, it is necessary to commit a crime through a functional control by a joint doctor, which is a subjective element, with respect to the intent of joint processing and objective requirements.

Here, the intention of co-processing is not sufficient to recognize the crime of another person and to accept it without any restriction. It is a single intent to jointly commit a specific crime and to shift one’s own intent by using another person’s act (see Supreme Court Decision 2009Do3923, Jul. 9, 2009). Whether a joint principal offender is established shall be determined through the whole process of committing the crime and comprehensively review the status and role of each person through the entire process of committing the crime, the contents of solicitation of the accomplice, etc., and shall be proved to the extent that there is no reasonable doubt. If there is no such proof, even if there is suspicion of guilt against the defendant, it shall be determined as the interest of the defendant even if the defendant is suspected of guilt (see Supreme Court Decision 2002Do5112, Mar. 11, 2005). (2) The court below classified the possibility of the crime into Defendant A and the person who requested attachment order and the person who requested surveillance and protection order against the person who committed the crime as to the Defendant F.