[상법위반][공2007.1.1.(265),90]
[1] The scope of accomplices included in the "offender" under Article 48 (1) of the Criminal Code
[2] Whether the property owned by an accomplice who does not support his/her criminal liability for conviction may be confiscated (affirmative)
[1] The "offender" under Article 48 (1) of the Criminal Code includes an accomplice. Thus, not only the property owned by the defendant but also the property owned by the accomplice can be confiscated regardless of whether the accomplice is prosecuted by the accomplice. Here, the accomplice includes not only the co-principal, the crime of aiding and abetting, but also the person who is in a requisite co-offender relationship.
[2] An accomplice falling under the “offender” under Article 48(1) of the Criminal Act cannot be deemed to be limited to a person who is liable for a crime of guilt, and if he commits an act falling under the accomplice, he is sufficient if he committed an act falling under the accomplice, such an object owned by the accomplice may also be forfeited from the defendant as “goods not belonging to a person other than the criminal person” under Article 48(1) of the Criminal Act.
[1] Article 48(1) of the Criminal Act / [2] Articles 48(1) and 49 of the Criminal Act
[1] Supreme Court Decision 83Do2680 delivered on May 29, 1984 (Gong1984, 1218), Supreme Court Decision 2000Do745 delivered on May 12, 200 (Gong2000Ha, 1463) / [2] Supreme Court Decision 99Da12161 delivered on May 11, 199 (Gong199Sang, 1143)
Defendant
Defendant
Attorney Yellow-gu et al.
Seoul Central District Court Decision 2005No3756 Decided July 19, 2006
The appeal is dismissed.
1. In full view of the adopted evidence, the court below affirmed the judgment of the court of first instance that found the defendant guilty of the facts charged of this case on the ground that the defendant, the representative director of the non-indicted 1 corporation, caused forfeited stocks during the process of offering new stocks to the above company, caused them to become a major shareholder of the above company, and conspired with the auditor non-indicted 3 of the above company to purchase the director non-indicted 2, who is the day of the board of directors' decision to dispose of forfeited stocks in order to secure management rights. After requesting that the defendant would accept forfeited stocks, the defendant expressed his intention to grant property benefits by requesting the non-indicted 2 to the non-indicted 2, and the auditor non-indicted 3 offered 100 million won in cash to the non-indicted 2 in return for giving the forfeited stocks at the request of the non-indicted 2, the board of directors' decision to dispose of forfeited stocks. In light of the records, the fact finding and decision of the court below is justifiable, and it is not erroneous in the misapprehension of legal principles or misunderstanding of legal principles as to the grounds for appeal.
2. The “offender” under Article 48(1) of the Criminal Act includes not only an accomplice, but also an accomplice’s property may be confiscated regardless of whether or not the accomplice is prosecuted (see, e.g., Supreme Court Decisions 83Do2680, May 29, 1984; 2000Do745, May 12, 200). Here, an accomplice includes not only a co-principal, an accessory, or an assistant, but also a person who is in a requisite co-offender relationship.
In addition, the judgment that sentenced confiscation of goods belonging to a third party, other than the defendant, should not be effective in principle in order to prevent possession of such goods in relation to the defendant who was convicted of the facts causing confiscation, and it does not affect the ownership of a third party who was not tried in the case (see Supreme Court Decision 9Da12161, May 11, 199, etc.) and the proviso of Article 49 of the Criminal Act provides that even if a judgment of conviction is not rendered against an accused, confiscation may be ordered when the requirements for confiscation are satisfied. In light of the above, it cannot be deemed that an accomplice falling under the "offender" under Article 48 (1) of the Criminal Act is limited to the person who was guilty, and it is sufficient if he committed an act falling under the accomplice. Thus, such things owned by a third party may be confiscated from the defendant as "goods not belonging to a person other than the criminal defendant" under Article 48 (1) of the Criminal Act.
The court below held that the defendant's act of giving and receiving money in the course of the defendant's illegal solicitation to non-indicted 2 and the act of the non-indicted 2's receiving and receiving it in return for an illegal solicitation is an act that constitutes a necessary accomplice as provided by the defendant, regardless of whether or not the defendant intended to receive it from non-indicted 2 (the record shows that the non-indicted 2 would have received and received the above money from the defendant with the intent to use it as evidence to make use as evidence to make excessive use of the defendant's crime) and thus, the 100 million won (Evidence 1) seized in this case can be confiscated from the defendant as long as the non-indicted 2 owns it. It is proper in accordance with the
3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Ji-hyung (Presiding Justice)