[범죄단체조직등피고사건][고집1982(형사편),412]
Cases that cannot be said to be a criminal organization
Criminal organization refers to an organized body formed under the common purpose of multiple persons to commit a certain crime, and the defendant and the non-indicted 1, 20,000 won received 1,00 won per month from the non-indicted 1, but it is insufficient to recognize that the above persons organized an organization for the purpose of committing a crime only on the basis of the above facts alone, where the defendant and the non-indicted 1, 2, etc. enticed the persons who observe the store by inducing them, and Non-indicted 2, upon having reported the network, took part in the defendant's role by stealing money and valuables, contributed to the defendant's order to commit a crime, and managed all money.
Article 114(1) of the Criminal Act
December 27, 197, 77Do3463 decided Dec. 27, 197 (Articles 114(4)1270, 578, 10540 of the Criminal Act)
Defendant
Prosecutor and Defendant
Daegu District Court Kimcheon (81 High Court Decision 102)
All appeals by the prosecutor and the defendant are dismissed.
The gist of the prosecutor's grounds for appeal is as follows: First, considering the defendant's statement and the evidence of his crime committed by the defendant and the defendant, the non-indicted 1 and the non-indicted 2 are found to be the relationship between the defendant and the non-indicted 1's specific crime; and the defendant, in accordance with the non-indicted 1's instruction, stolen goods and delivered them to the non-indicted 1, and the defendant decided to receive only a certain monthly remuneration from the non-indicted 1. If the above relationship exists, the non-indicted 1 is the person who leads to the above organization as the second part of the above organization; the defendant is the person who is under the command of the non-indicted 1 and the non-indicted 1 and the non-indicted 2's order and division within the organization; since the defendant's order and division within the organization could be sufficiently recognized, the court below's decision that the defendant was not guilty by misunderstanding the facts against the rules of evidence; second, the defendant's non-indicted 1 and the non-indicted 2's order to prevent the defendant from spreading 1 to the remaining 15 days.
First of all, I will examine the prosecutor's argument of mistake.
The crime purpose of Article 114(1) of the Criminal Act is a continuous combination with the common purpose of which multiple persons commit a certain crime, and it is required that the defendant, the non-indicted 1, and the non-indicted 2, etc., in the course of theft of goods at the other's store, shall have a minimum leading system leading the organization, unlike the group of multiple persons, to share the commission of the crime in the conspiracy of crimes, or to have a simple group of multiple persons. According to the records, the defendant, the non-indicted 1, the non-indicted 1, and the non-indicted 2, the defendant, the non-indicted 1, the defendant, and the non-indicted 2 shall induce the person who observe the store to commit the crime and share the role of the defendant by cutting money and valuables, the defendant directed the defendant to commit the crime, and the defendant shall not have received the stolen stolen stolen goods, and the defendant shall have promised to receive 3 million won monthly payment from the non-indicted 1 to the monthly salary, but shall have received KRW 1,200,00.
However, the above facts alone are insufficient to recognize that the defendant organized an organization for the purpose of committing a crime together with Nonindicted Party 1 and 2, or at least Nonindicted Party 1 and 2 organized such an organization, and there is no other data to recognize that the defendant organized the above Nonindicted Party.
Therefore, the court below's decision that found the defendant not guilty of the organization of the criminal organization among the facts charged in this case is justified, and the prosecutor's allegation of mistake is groundless.
Next, I will examine the prosecutor's and the defendant's argument of unfair sentencing.
In light of the following circumstances: (a) the number of the instant crimes is 15 times in all circumstances, which are the conditions for the sentencing indicated in the records, such as the following: (b) the Defendant’s age, character and conduct, intelligence, environment, motive for and consequence of the commission of the crime, and circumstances after the commission of the crime; and (c) the amount of damage is KRW 11 million in total; and (d) the amount of damage is not recovered from damage; (b) the Defendant initially committed the instant crime in compliance with the instructions given by Nonindicted Party 1, an accomplice, etc., the Defendant is not deemed to have been sentenced to imprisonment with prison labor for a more than two years.
Therefore, the judgment of the court below is just, and since the appeal by the prosecutor and the defendant is all groundless, it is all dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.
Judges Lee Jae-won (Presiding Judge) and Lee Jin-chul