[2] In a crime of organizing an organization, etc. under Article 4 of the former Punishment of Violences, etc. Act, whether a certain time, which is not the date and time of a crime as stated in the written indictment, can be deemed as constituting a temporary crime and punished as guilty (negative)

1. Judgment on the grounds of appeal by the prosecutor

A. Of the facts charged against Defendant 2, 5, and 6, the violation of the Punishment of Violences, etc. Act (organization and activity of organization, etc.) due to the formation of the ○○-type mponion organization (organization and activity of organization, etc.), and the violation of the Punishment of Violences, etc. Act (organization and activity of organization, etc.) due to the act of acting as ○-type mponing members of the crime organization on January 5, 207 among the facts charged against Defendant 5

The term "organization of a criminal organization" means the organization and establishment of a new criminal organization. As such, when a new criminal organization constitutes a new criminal organization using an existing criminal organization, it refers to a case where the existing criminal organization is separated from the existing criminal organization and constitutes a separate criminal organization, as it is combined with another criminal organization, and the organization can be recognized as a separate organization that is not identical with the existing criminal organization by completely changing the organization (see Supreme Court Decisions 2000Do102, Mar. 24, 200; 2004Do805, Apr. 23, 2004, etc.).

According to the reasoning of the judgment below, the court below held that ○○○○○○○○○○○○○○○○’s statement and records were as follows. ① Even if it was based on the statements of ○○○○○○○○○○○○○○○○○’s staff members who had been affiliated with the above ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○’s organization, it was only 20 members of the organization, and 8-9 members who had been formed one day to 3 days, and most of the members of the organization were removed from the organization during 2-3-month period, and thus, it is difficult to view that there was no other way to take necessary measures to maintain the organization’s organization’s new and new balance with that of Defendant 2, including the fact that there was no other evidence to support the organization’s organization’s act or new and new activities.

B. As to the violation of the Punishment of Violences, etc. Act (a group, deadly weapon, etc.) around November 2006 among the facts charged against Defendant 2

Examining the reasoning of the judgment below in light of the records, the judgment of the court of first instance which found the prosecutor guilty of this part of the facts charged is reversed, and the decision of the court below which acquitted the defendant on the ground that the evidence submitted by the prosecutor was not reliable in light of the circumstances of the court below'

C. Of the facts charged against Defendant 3, the violation of the Punishment of Violences, etc. by joining the Criminal Organization on February 2, 2002 (Organization and activity of the Organization, etc.)

Since the crime of organizing an organization, etc. under Article 4 of the former Punishment of Violences, etc. Act (amended by Act No. 7891 of Mar. 24, 2006) is an immediate crime established and completed immediately by forming an organization or group for the purpose of a crime under the same Act, the statute of limitations is underway at the same time when the crime is established. Meanwhile, the date and time of organizing an organization for a crime is an important requirement to specify the crime, and whether the statute of limitations for a crime has expired, as well as an element to determine whether the statute of limitations for a crime has expired, even if the fact that the defendant acted as a member of an organization for a crime is recognized, it is not permissible to punish the defendant by recognizing any date and time, not the date and time of a crime specified in the indictment, as a date and time, unless it is recognized that the organization was constituted in the indictment (see, e.g., Supreme Court Decisions 93Do999, Jun. 8, 193; 2005Do3857, Sept.

According to the reasoning of the judgment below, the court below reversed the judgment of the first instance which found Defendant 3 guilty of this part of the charges on the ground that there is no proof of criminal facts on the ground that it cannot be deemed that Defendant 3 was newly admitted to a criminal organization on February 28, 2002, on the ground that it cannot be deemed that Defendant 3 was a new criminal organization since it did not have a new criminal organization since it was a new criminal organization, even if ○○m and △m wave were integrated into the ○○m and △m, and it was established a new ○m, and there is no objective evidence to deem that Defendant 3 joined the ○○m, around July 1997. In light of the above legal principles and records, the court below did not err in the misapprehension of legal principles as to the criminal organization under Article 4 of the Punishment of Violences, etc. Act as alleged in the grounds for appeal.

D. Of the facts charged against Defendant 3, the violation of the Punishment of Violences, etc. Act (Organization and activity of an organization, etc.) on May 25, 2007 and the violation of the Punishment of Violences, etc. Act (injury to a group, deadly weapon, etc.)

Examining the reasoning of the judgment below in light of the records, the judgment of the court of first instance which found the prosecutor guilty of this part of the facts charged is reversed and the decision of the court below which acquitted the defendant on the ground that the evidence submitted by the prosecutor was not admissible in light of the circumstances of the court below

2. As to the grounds of appeal by Defendant 1 and state appointed defense counsel

A. As to the assertion of misconception of facts against the rules of evidence regarding the violation of the Punishment of Violences, etc. Act (Composition and Activity of Organizations, etc.) among the facts charged against Defendant 1

Even if the defendant appealed on the ground of an unfair sentencing as well as other grounds for appeal against the judgment of the first instance, and thereafter withdraws the grounds for appeal other than unfair sentencing before the pronouncement of the judgment of the court below, it shall not be deemed as the ground for appeal that there was an error of mistake of facts or misapprehension of legal principles against the judgment of the court of first instance (see Supreme Court Decision 2005Do3244, Sept. 9, 2005). As to this, the defendant appealed on the ground of unfair sentencing only on the ground of unfair sentencing, and the appellate court reversed the judgment of the first instance ex officio and rendered a sentence identical to the judgment of the first instance after the appellate court reversed the judgment of the first instance, the defendant may not be deemed as the ground for appeal against the misapprehension of legal principles as to

Defendant 1 appealed against the judgment of the court of first instance, and claimed mistake of facts, etc. along with the grounds of appeal on January 7, 2009, but withdrawn all the grounds of appeal other than the unfair sentencing on the second day of the court of second instance on January 7, 2009. Accordingly, in this case where the court below reversed ex officio the judgment of the court of first instance and rendered the same sentence as the judgment of the court of first instance, Defendant 1 cannot be viewed as

B. As to the assertion of unfair sentencing

According to Article 383 subparagraph 4 of the Criminal Procedure Act, only a case on which death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed, an appeal on the ground of unfair sentencing is permitted. As such, in a case on which Defendant 1 was sentenced to imprisonment for less than ten years, the argument that the determination of a sentence is unreasonable cannot be a legitimate ground for

3. As to the grounds of appeal by Defendant 4 and state appointed defense counsel

In this case where a sentence of imprisonment with labor for less than 10 years is imposed on Defendant 4, the argument that the punishment is too unreasonable cannot be a legitimate ground for appeal in light of the provisions of Article 383 subparag. 4 of the Criminal Procedure Act. The argument that Defendant 4's refusal of the judgment of this case until the period of suspended execution of the sentence sentenced to another defendant's previous case expires cannot be a legitimate ground for appeal.

4. Conclusion

Therefore, all appeals are dismissed, and part of the number of detention days after each appeal shall be included in the original sentence after each appeal is filed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Nung-hwan (Presiding Justice)