[폭력행위등처벌에관한법률위반피고사건][고집1978형,172]
The meaning of an organization of crime under Article 4 of the Punishment of Violences, etc. Act.
The crime organization under Article 4 of the Punishment of Violences, etc. Act is a somewhat continuous combination with the common purpose of which many and specified persons commit a certain crime, and its members should be able to be classified into the number of respondings, the executives and the simple subscribers, and have the minimum leading system that can lead the organization corresponding to the deceptive scheme.
Article 4 of the Punishment of Violences, etc. Act, Article 114 of the Criminal Act
Supreme Court Decision 77Do3463 delivered on November 28, 1978 (Supreme Court Decision 263Do128 delivered on December 27, 197) (Article 114(4) of the Criminal Act, Article 114(4)10 of the Court Gazette No. 578 delivered on April 13, 197, Article 76Do340 delivered on April 13, 197 (Article 114(3) of the Criminal Act, Article 1270 of the Court Gazette No. 537 delivered on April 13, 197)
A
Prosecutor and Defendant
Seoul District Court (78 High Court Decision 271)
Of the judgment of the court below, the defendant guilty shall be reversed.
A defendant shall be punished by imprisonment for three years.
One hundred and sixty-five days of detention days prior to the sentence of the original judgment shall be included in the above sentence.
The prosecutor's appeal concerning the portion not guilty among the judgment of the court below is dismissed.
The gist of the grounds for appeal by the defendant and his defense counsel is as follows: First, the defendant did not commit the crimes of Articles 2 and 3 of the indictment which the court below found guilty at the court below; second, the court below found the defendant guilty as to this part of the judgment; second, the court below erred in misunderstanding of facts that the sentence imposed by the court below is too unreasonable; second, the public prosecutor appealed as to the part which acquitted the defendant at the court below; second, the court below found the defendant not guilty as to the facts of the first indictment as a crime of Article 4 of the Punishment of Violences, etc. Act is a continuous combination which was conducted under the joint purpose that many persons commit a certain crime, and it is necessary that the members of the organization can be classified into one leader, executives and simple subscribers; second, the defendant and the accomplice should have a minimum supportive system that can lead the organization corresponding to the deceptive scheme; second, the court below's decision was not sufficient to recognize the defendant's active relation with the defendant's organization by misunderstanding the legal principles as above, and thus, it is not sufficient to recognize that the defendant was guilty.
First of all, a criminal organization under Article 4 of the Punishment of Violences, etc. Act with regard to the grounds for appeal by the public prosecutor is a somewhat continuous and continuous combination with the common purpose of which many and specified persons commit a certain crime, as appropriately decided by the court below, and its members can be classified into one-way response, two-way and simple subscribers, and the organization should have a minimum leading system that can lead the organization corresponding to the deceptive scheme. According to the records, so-called so-called one-called "Defendant and his accomplice," which is referred to in B, C, D, E, etc., with intent to attract another person's money and valuables as at the time of the original trial, and it cannot be viewed as constituting the above criminal organization, and therefore, the court below's judgment which acquitted the above crime for this reason is just and therefore, it is not acceptable to accept the prosecutor's appeal that acquitted the above crime.
The following grounds for appeal are examined in light of the records: (a) considering the records, the first evidence duly admitted by the court below after examining the evidence, the defendant's grounds for appeal as to the mistake of facts cannot be accepted.
Then, considering the second ground for appeal of the defendant, the defendant's age, character and conduct, environment, motive, means, result, etc. of the crime in this case, the amount of the defendant's punishment against the defendant is too unreasonable. In this regard, the defendant's appeal is justified.
Therefore, under Article 364 (4) of the Criminal Procedure Act, the prosecutor's appeal on the part not guilty in the original judgment shall be dismissed, and under Article 364 (6) of the Criminal Procedure Act, the part which convicted the defendant among the original judgment shall be reversed, and this part of the decision shall be remanded
Criminal facts and summary of evidence
The criminal facts of the defendant recognized as a party member and the summary of the evidence are as shown in each corresponding case of the judgment of the court below, and all of them are cited in accordance with Article 369 of the Criminal Procedure Act.
applicable provisions
In the judgment of the defendant, since the punishment of the defendant is one of the prescribed sentences under Articles 2(2) and (1) and 350(1) of the Punishment of Violences, etc. Act, and each of the above so-called so-called so-called concurrent crimes is related to the insult crime for which the judgment of the court becomes final and conclusive under Article 37(1) of the Criminal Act, the defendant is sentenced to a separate punishment pursuant to Article 39(1) of the Criminal Act. Since there is a repeated crime in the judgment of the defendant, each repeated crime is within the limit of the proviso of Article 42 of the Criminal Act in accordance with Article 35 of the Criminal Act, and the first and second crimes in Article 38(1)2 and Article 50 of the Criminal Act are concurrent crimes in accordance with Article 37 of the same Act. Thus, the punishment of the first and second crimes in Article 38(1)2 and Article 50 of the same Act are concurrent crimes with the punishment of the second crime, within the scope of the limited scope of Article 42 of the same Act.
It is so decided as per Disposition for the above reasons.
Judges Kim Jong-sik (Presiding Judge) and Kim Jong-sung only