1. As to Defendant B’s ground of appeal

A. As to the assertion of misunderstanding of facts and misapprehension of legal principles, the co-principal under Article 30 of the Criminal Act is established by satisfying the subjective and objective requirements, namely, the implementation of a crime through functional control based on the intention of co-processing and the common intent.

A person who does not directly share and implement part of the elements of a crime among the conspiracys may be held liable for the so-called crime as a co-principal. However, in order to avoid such crime, considering the status, role, control over the progress of the crime, etc. in the whole crime, 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 exists.

In addition, in light of all the circumstances, such as the means and form of crime, the number of participants and their inclinations, the time and characteristics of the place for the crime, the possibility of contact with others in the course of the crime, the possibility of contact with others, and anticipated reaction, etc., the conspiracys could have anticipated or sufficiently anticipated that incidental crimes will be derived during the commission of the crime or going further to achieve the purpose, but did not take reasonable measures to prevent such occurrence, and eventually, if the crime was anticipated to have occurred, then they should have failed to take such reasonable measures to prevent the occurrence of the crime. In short, even though there was no contact with others, even if there was no contact with them as to one of the derivative crimes, they should be deemed to have existed the functional control over the whole crime, as well as implied conspiracy among the initial

Supreme Court Decision 2010Do7412 Decided December 23, 2010 and Supreme Court Decision 2010Do7412 Decided September 12, 2013