A. The Defendants, upon the F’s request or pressure, only allowed the use of the names of the Defendants in the instant crime or did not directly participate in the instant crime, in registering the Defendants as directors and shareholders of G Co., Ltd. (hereinafter “G”) by mistake of facts (the Defendants).

B. The sentence of the lower court on the Defendants (Defendant A, B, and D: the amount of a fine of KRW 10 million, Defendant B, and D: each fine of KRW 7 million) is too unreasonable.

2. Determination

A. Article 30 of the Criminal Act regarding the Defendants’ assertion of mistake of facts is established by satisfying the subjective and objective requirements such as the execution of a crime through the functional control by the intent of joint processing and the functional control by the joint will. As such, a person who did not directly share and implement the elements of a crime among the competitors may be held liable for the so-called crime as a co-principal depending on whether the above requirements are met.

On the other hand, in order to be recognized as a co-principal by a conspiracy who did not directly divide and implement the elements of a crime as a co-principal, the functional control of the act through essential contribution to the crime should be recognized not only as a mere conspiracy, but also as a functional control over the crime by taking into account the status and role of him/her in the whole crime, or the control or power

(2) The Defendants, at the request of the F, permitted the entry of the Defendants into G as directors and shareholders, and granted their respective seal impressions and certificates of personal seal impressions to each of the following circumstances acknowledged by the evidence duly adopted and examined by the lower court (see, e.g., Supreme Court Decision 2010Do3544, Jul. 15, 2010). The Defendants found the instant temporary general meeting of shareholders and the minutes of the board of directors in charge of the instant crime at the KJ office of a certified judicial scrivener in charge of the affairs relating to the preparation of the minutes of the instant general meeting of shareholders and the board of directors.