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(영문) 서울고등법원 2017.03.31 2016노3763
특정범죄가중처벌등에관한법률위반(향정)등
Text

All appeals by the Defendants are dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendant A1) misunderstanding the facts and misapprehension of the legal doctrine, Defendant A did not intend to purchase the Meart clicker (hereinafter “philopon”) from J and sell it to Defendant B, as seen below.

Nevertheless, the judgment of the court below that found Defendant A as a joint principal offender for the trade of philophones is unfair.

① Defendant A did not engage in any act described in Article 1-1(a) of the facts charged; there is only a fact that Defendant A lent the purchase fund of philopon to I on the date stated in Article 1-2(b) through (f) of the facts charged and caused Defendant B to be a chosome for Defendant A’s operation. This is nothing more than aiding and abetting Defendant A and Defendant B to trade philopon. ② Defendant A merely locked the philopon that I left at the date stated in Article 2 of the facts charged, and purchased it from I.

This is also nothing more than aiding and abetting the trade of I's philophones. 2) The punishment that the court below sentenced against Defendant A (three years of imprisonment) is too unreasonable.

B. Defendant B’s misunderstanding of the facts as to Defendant B’s 1-B and 3-C of the facts charged merely purchased a phiphone on the date and time indicated in the other facts charged, and there is no fact that the phiphone was purchased on the date stated in the remaining facts charged in paragraph 1-B.

Nevertheless, the judgment of the court below that convicted Defendant B of the whole facts charged is unreasonable.

2) The punishment sentenced by the lower court to Defendant B (one year and six months of imprisonment) is too unreasonable.

2. Determination

A. Determination as to the Defendants’ assertion of mistake of facts 1) As to the allegations related to Article 30 of the relevant legal principles, the joint principal offender under Article 30 of the Criminal Act jointly commits a crime. In order to establish a joint principal offender, a subjective element is a crime through functional control based on the intention of joint processing and objective requirements.

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