[범죄단체조직·특정범죄가중처벌등에관한법률위반·장물취득·장물보관피고사건][고집1981(형특),208]
Cases that do not reach the organization of a criminal organization
In the event that the defendant et al. committed larceny, it is not sufficient to view that the defendant et al. organized a crime organization with the minimum general guidance system for the purpose of controlling the order within the organization as a combination with the common purpose.
Article 114 of the Criminal Act
Supreme Court Decision 76Do340 Decided April 13, 1976 (Article 114(3) of the Criminal Act; Article 537 of the Court Gazette); Article 76Do3463 Decided December 27, 1977 (Article 114(4) of the Criminal Act; Article 578 of the Court Gazette; Article 10540 of the Court Gazette)
Defendant 1 and two others
Seoul District Court Decision 81 Gohap68, 81 High Court Decision 13)
The judgment of the court below is reversed.
Defendant 1 and 2 shall be punished by imprisonment with prison labor for three years and by imprisonment with prison labor for two years.
The number of detention days prior to the pronouncement of the judgment of the court below shall be 90 days included in the above punishment.
Of the facts charged in this case, the criminal organization against the defendant, etc. shall be acquitted.
Defendant 1 and 2 of the Claimant for Protective Custody shall be punished by seven years, respectively.
The gist of the grounds for appeal by the defendant, etc. is as follows: first, the defendant, etc. conspired to meet or larceny the thief at the coast office in Dongdaemun-gu Seoul Metropolitan Government at the time of the original trial at the time of the commission of the crime of larceny, even though there was no organization of the thief, the court below found the charge of the crime of larceny and affected the judgment by mismisunderstanding the facts; second, the summary of the grounds for appeal by the public defender of the defendant, etc. and the public defender of the defendant, etc. is divided in depth. In light of the above, the sentence of the defendant, etc. against the defendant, etc. is too unreasonable.
Therefore, the first point of the grounds for appeal by the defendant et al. is determined, and according to the reasoning of the judgment of the court below, the court below acknowledged that the defendant et al. conspired with the non-indicted in collusion with the non-indicted on October 20, 1980, by comprehensively taking into account the statements of the defendant et al. in the court and the statements of each protocol of examination of the suspect's suspect about the defendant et al. prepared by the prosecutor, and decided that the defendant et al. constitute a thief specializing in larceny in the piracy at the Maritime Office located in the office located in the Dongdaemun-gu Seoul Dongdaemun-gu Seoul Metropolitan Government 2-dong 2-dong, Dongdaemun-gu, and the defendant 1 constitutes a thief organization
However, according to Article 114 (1) of the Criminal Act, the term "organization aiming at a crime" refers to a combination of non-indicted 1 and multiple persons under the joint purpose of committing a certain crime. This is intended to prevent the destruction of national legal order by multiple joint forces. Thus, as long as it is organized, unlike a simple multiple gathering, it is necessary to have a minimum leading system. Although the court below conspired to commit larceny at the same time until it is held in the first trial court, it is extremely denied that there was no criminal organization for the purpose of the crime, it is not evidence to acknowledge the above facts, and it is also necessary to introduce the defendant 1 and the non-indicted 2's respective interrogation protocol (each one time) as to the defendant 1 and the non-indicted 4's suspect's suspect's 1 and the non-indicted 2 were confined to the defendant 1 and the non-indicted 3's suspect's suspect's suspect's 1 and the defendant 2 did not know about the defendant's 1 and the defendant 2's suspect's 3.
Therefore, the court below should make a verdict of innocence with respect to the organization of the criminal organization against the defendant, etc. among the facts charged in the case of this case. However, the court below found the defendant guilty without any evidence, or erred by misapprehending the legal principles as to "organization with the purpose of crime" under Article 114 of the Criminal Act, and affected the judgment. Thus, the court below's error in the above judgment has affected the whole of the judgment of the court below as long as the crime committed against the defendant, etc. and the relation of substantive concurrent crimes under the former part of Article 37 of the Criminal Act with the remaining criminal facts at the time of original judgment had influenced the whole of the judgment of the court below. Thus, the court below
Therefore, the judgment of the court below shall be reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the judgment shall be rendered again as follows.
In addition to the criminal facts in the judgment below, the criminal facts against the defendant 1 and 2, the grounds for the request for custody and custody against the defendant 1 and 2, the criminal facts in the judgment of the court below are deleted, and the criminal facts in the judgment of the court below are the same as those in the judgment of the court below, and the criminal facts in the judgment of the court below are the same as those in the judgment of the court below.
Since the Defendants’ respective judgments comprehensively constitute Articles 5-4(1) and 331(2) of the Act on the Aggravated Punishment, etc. of Specific Crimes, each of the above crimes constitutes a repeated crime under the proviso of Article 35(1) of the Criminal Act. Since the above crimes constitutes a repeated crime under the proviso of Article 42(2) of the same Act, each of the above crimes constitutes a repeated crime under the proviso of Article 35(2) of the same Act; Defendant 3 still has no criminal records sentenced to imprisonment without prison labor or heavier punishment; Defendant 2 is subject to discretionary mitigation under Articles 55(1)3 of the same Act; Defendant 53 and 55(2) of the same Act; Defendant 1 and 3 years of imprisonment without prison labor or more; Defendant 2 is subject to criminal punishment for the same kind of crime under Article 35(1) of the same Act or imprisonment without prison labor or imprisonment without prison labor for a limited term of not less than 5 years; Defendant 2 is subject to punishment for the same kind of crime under Article 57(2) of the same Act.
Of the facts charged in the instant case, the Defendant et al. resolved on Oct. 20, 1980 to form an organization specialized in larceny at the piracy located in the 2nd Dong Office located in Dongdaemun-gu Seoul, Dongdaemun-gu, Seoul on Oct. 20, 1980, and Defendant 1 was organized by Defendant 2 and 3 with locks, and the Nonindicted Party was organized by the Nonindicted Party for the purpose of larceny, such as setting the duty to view the network. Since there is no evidence to acknowledge it on the grounds as seen in the above reasons for reversal, the Defendant et al. is pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act.
It is so decided as per Disposition for the above reasons.
Judges Kim Young-jin (Presiding Judge)