[2] The method of determining the illegality of a naval investigation according to the degree of direct relation between the inducer and the investigative agency and the involvement of the inducer in the inducing of the crime

[2] An inducement directly related to an investigation agency is not allowed to cause a criminal intent by resisting the situation or appraisal of the inducer by taking advantage of personal friendly relationship with the inducer, causing monetary or psychological pressure or threat, or by excessively participating in the crime by specifically presenting the method of the crime, providing the money to be used for the crime, etc. However, it is not allowed to cause the inducer as an illegal undercover investigation. However, if the inducer merely requested the inducer to commit a crime more repeatedly and repeatedly without direct relation with the investigation agency, and the investigation agency cannot be deemed to have used the means or schemes, etc., even if the cause of the crime was caused, it does not constitute an illegal undercover investigation.

1. A naval investigation that induces a person who does not have the original criminal intent to commit a crime by using a deceptive act or attack, etc. and arrests the criminal is illegal (see Supreme Court Decision 2005Do1247, Oct. 28, 2005, etc.). Whether a person constitutes an illegal naval investigation in a specific case should be determined by taking into account the type and nature of the crime in question, the status and role of the inducer, the details and method of the inducement, the response of the inducer, the response of the inducer, the criminal history of the inducer, and the illegality of the inducing act itself, etc.

Therefore, it is not allowed that the inducer, who is directly related to the investigation agency, appeals to the ruling or appraisal of the inducer by taking advantage of personal-friendly relationship with the inducer, or by causing monetary or psychological pressure or threat, or by excessively participating in the crime by providing the money to be used for the crime, etc., or by specifically presenting the method of the crime, constitutes an illegal undercover operation. However, even if the inducer does not have direct relation with the investigation agency, he/she merely requested the inducer to commit the crime more repeatedly and repeatedly, and the investigation agency cannot be deemed to have used the means or schemes, etc., even if the cause of the crime was caused, it does not constitute an illegal undercover operation.

2. Comprehensively taking account of the evidence presented by the lower court, Nonindicted Party 1 was released from Nonindicted Party 2 with Nonindicted Party 1’s request for the arrest of Nonindicted Party 2. According to Nonindicted Party 2’s request, Nonindicted Party 2 was working as an information source of the Seoul Central District Prosecutors’ Office and received a reward in return for arresting Nonindicted Party 2. Nonindicted Party 1, who became aware of the Defendant at the time of Cheongscoping from February 2005 to 10, to request the Defendant that “I would like to purchase Mascopic copic copic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic sc.

3. However, it is difficult to accept such judgment of the court below in light of the above legal principles and records.

In other words, even according to the facts acknowledged by the court below, the investigation agency became aware of the fact through Nonindicted 2 only after the defendant consented to the crime upon Nonindicted 1’s request, and it seems that Nonindicted 1 had not yet been aware of the fact at the time when the investigation agency requested the defendant to seek a philopon. In light of these circumstances, it should be deemed that the investigation agency, rather than allowing Nonindicted 2 or Nonindicted 1 to induce the defendant, by the acquisition of monetary rewards, etc., independently induces the defendant without relation to the investigation agency. In addition, it is difficult to view that Nonindicted 1 merely requested the defendant to purchase a philopon more than 10 times on the part of the defendant, “the woman tried to purchase a philopon,” and that it did not change the defendant’s body or appraisal through the defendant’s personal-friendly relationship with the defendant, or that the defendant was unable to resist or refuse to use a monetary, psychological pressure or threat, or that the defendant was using a certain method of criminal investigation, etc., even if the investigation agency presented or provided money to the defendant.

Nevertheless, the court below determined that the crime of this case was caused by illegal naval investigation only for the reasons stated in its reasoning. In so doing, the court below erred by misapprehending the legal principles on naval investigation, which affected the conclusion of the judgment.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Hwang-sik (Presiding Justice)