[2] The case where the intent to jointly process in larceny is denied

[2] The case reversing the judgment of the court below on the ground that it is difficult to view that the act of cutting off dystostostostostos to sell them to the owner was an intention of joint processing necessary to recognize the establishment of a joint principal offender in larceny

1. The judgment of the court below

According to the reasoning of the judgment of the court below, the court below recognized the defendant as being responsible for the joint principal offense of larceny by taking into account the evidence adopted by the court of first instance as to each of the facts charged as stated in Articles 1. and 3 of the indictment to the following purport, and found the facts charged and the facts charged as stated in Article 2 of the indictment concerning special larceny (joint principal offense) over three occasions of the defendant and co-defendant 1 in the court below as they are, and it is clear that each of the facts charged are based on the realization of the defendant's wall of larceny, and it constitutes Article 5-4 (1) of the

The defendant is a person who runs a sales store.

(1) If Co-defendant 1 of the court below stolen Oralba, the defendant conspireds with Co-defendant 1 of the court below and Non-Indicted 1 to dispose of it;

Co-defendant 1 of the court below, in collaboration with Non-Indicted 1, from June 1996 on the first day to September 1, 1996 on the first day of the same year, stolen Obane over eight times in a manner that Co-defendant 1 of the court below moved in the way that Co-defendant 1 of the court below in each area of the city of Busan from around Busan to around September 1, 199, and loaded it with Non-Indicted 1 and Non-Indicted 1 together with his passenger car driving;

(2) If Co-defendant 1 of the court below stolen Oralba, the defendant conspireds with Co-defendant 1 of the court below and Nonindicted 2 to dispose of it; and

Co-defendant 1 of the court below, in collaboration with Non-Indicted 2 on August 1996, 196, stolen Obabaon in front of the agricultural trial conference located in Busan High-ro 3 281-6, Busan High-ro, Busan High-ro, 281-6, which Co-defendant 1 of the court below moved Oba in the way in which Co-defendant 1 of the court below was driving with Non-Indicted 2, and loaded Oba on the part of Non-Indicted 2.

2. Judgment of party members

In order to constitute a joint principal offender under Article 30 of the Criminal Act, two or more persons must jointly commit a crime. A subjective element is required to commit a crime through functional control by a joint doctor, which is an objective element. The intent of joint process is to jointly and severally engage in a specific criminal act, and to shift one’s own intent by using another’s act (see Supreme Court Decisions 92Do3204, Mar. 9, 1993; 95Do2461, Jan. 26, 1996; 96Do2427, Jan. 24, 1997, etc.).

Therefore, in order to punish the defendant as a co-principal of larceny with regard to each of the facts charged in the indictment Nos. 1. 3 and 3, the defendant must be deemed to have moved to the defendant's will of larceny by using his act as a joint will with co-defendant 1, 1, and 2 of the court below.

However, according to the records, the details and contents of the conspiracys between the Defendant and Co-Defendant 1, Nonindicted 1, and Nonindicted 2, and the circumstances after Co-Defendant 1, etc. committed the crime are as follows.

The defendant was running the business of purchasing and selling stolens. On the other hand, Co-defendant 1, 200 in Seoul, heard the horses that Non-indicted 1 would have ", there is money in Busan." On May 1996, 200, Co-defendant 1, together with Non-indicted 1, was punished for thief, several times with the defendant and Non-indicted 2, etc. It seems that the court below's decision was 10,000 won that "No money would have been stolen from Non-indicted 10,000 won." On the other hand, Co-defendant 1 and Non-indicted 2 knew that the defendant would have been stolen from Non-indicted 1 and Non-indicted 1, and that there was no money that the defendant would have been stolen from Non-indicted 1 to 0,000 won. It seems that Co-defendant 1 and Non-indicted 1 would have been aware that there was no money for 10,000 won per piece of investigation (see the court below's ruling below's ruling below's ruling below's ruling No. 10).

On the other hand, according to the records, co-defendant 1, etc. of the court below, the defendant was granted a car used when he steals Otoba, and the defendant was given the key to his own store to Co-defendant 1 of the court below so that Co-defendant 1, etc. can easily take off Otoba that he stolen. However, in light of the above, the relationship between the defendant and Co-defendant 1 of the court below's delivery of Obaba, etc., giving money to Co-defendant 1 of the court below, etc. is the relationship between the defendant's delivery of the defendant and the defendant's co-defendant 1 of the court below's co-defendant 1 of the court below's delivery of the goods and the profits acquired as a crime, or the relationship between the defendant and the other co-defendant 1 of the court below's delivery of the goods with Obababa, etc., or the payment of the cost for the completion of his work, rather than the relationship between the defendant's disposal of Obabababa, etc.

If there are these circumstances, it would be difficult to view that the defendant had an intention to jointly process necessary to recognize the establishment of a joint principal offender. Nevertheless, considering the evidence of the judgment of the court of first instance, the court below recognized the above facts charged that "If a co-defendant 1 of the court below stolen Oral Ba and conspired the defendant to dispose of it" with Co-defendant 1, 1, and 2 of the court of first instance, and recognized that the defendant is a joint principal offender, and it is concluded that the defendant is a joint principal offender of the facts stated in Articles 1, 3 and 1 of the judgment of the court of first instance, and that the facts recognized without any evidence in violation of the rules of evidence have been committed. There is a reason to discuss

If the defendant cannot be recognized as a co-principal of larceny with regard to each of the crimes listed in No. 1, 3 of the judgment of the first instance court, the judgment of the court below which comprehensively recognized the habitual larceny by combining all the crimes listed in No. 2 of the judgment of the first instance and the criminal facts listed in No. 2 of the judgment of the court of first instance cannot be maintained as it

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Jong-ho (Presiding Justice)