국민체육진흥법위반(도박개장등)등
All appeals filed by the Defendants and the prosecutor against the Defendants are dismissed.
1. Summary of grounds for appeal;
A. Defendant (Defendant B) did not agree with the accomplices stated in the facts charged in the instant case.
In addition, the defendant was involved only in the operation of the AH site among the three gambling sites listed in the facts charged of this case, and the rest of the gambling sites are irrelevant to the defendant.
On the other hand, the defendant only took charge of the public relations of gambling sites and the management of bulletin boards, and did not take part in the affairs of filling, exchanging, etc.
B. Sentencing 1) The respective sentence of the lower court (Defendant A: imprisonment of one year, confiscation, additional collection, Defendant B’s imprisonment of one year, additional collection) is too unreasonable.
2) Each sentence of the lower court by the Prosecutor is too unhued and unreasonable.
2. Determination
A. Determination as to Defendant B’s assertion of mistake of facts is established by meeting the subjective and objective requirements of the crime committed through the intent of co-processing and the functional control based on the intention of co-processing. As such, even if a person who did not directly share and implement the elements of the crime, if it is acknowledged that the functional control through the essential contribution to the crime exists not just as a mere conspiracy but as a joint principal offender, when comprehensively considering the status, role, control or power over the process of the crime in whole, etc. of the crime, the joint principal offender under Article 30 of the Criminal Act is liable for the crime committed by another conspiracy.
In this case, in light of the means and attitudes of the crime, the number of participants and their inclinations, the time and characteristics of the crime, the possibility of contact with others in the course of the crime, and anticipated reaction, etc., the conspiracys can be anticipated or sufficiently anticipated that the incidental crimes will be derived during the commission of the crime or going forward to achieve the purpose, but such possibility is sufficient to prevent it.