[1] The meaning of "current location" in Article 4 (1) of the Criminal Procedure Act, which provides territorial jurisdiction, and whether it constitutes "current location by lawful coercion" (affirmative)

[2] The meaning of "Immediate" under Article 213 (1) of the Criminal Procedure Act, and in a case where a flagrant offender is arrested and then a flagrant offender is delivered to a prosecutor, etc. without any unnecessary delay after being arrested, the starting point of counting 48 hours for the period of request for detention warrant (=the time when the prosecutor, etc. takes over

[3] The case affirming the judgment below holding that, in case where the Defendants were arrested, transported, delivered to the domestic investigation agency by the Cheonghae Unit of the Republic of Korea on the ground that they committed an act of marine robbery, etc. on the high seas and committed an act of marine robbery, etc. on the ROK citizen crew members, etc., and detained and prosecuted after being arrested, transported, and delivered to the domestic investigation agency, the defendants are detained in Korea at the time of lawful arrest, immediate delivery and lawful detention, and thus, the domestic court

[4] The case affirming the judgment below holding that in case where Defendants A et al. were arrested, transported, and charged with committing an act of marine robbery, etc. on the high seas by conspiracy with the ROK marine transportation company's crew members, etc., and committed an act of marine robbery, etc. on the ROK citizen crew, etc., the defendant A et al. could sufficiently be able to have the intent to kill Eul's captain B, and the remaining Defendants could not expect that he would murder Eul

[1] Article 4(1) of the Criminal Procedure Act provides that "The territorial jurisdiction shall be the place of crime, the address, the domicile, or the present location of the defendant," and "current location" in this context refers to the present location of the defendant at the time of prosecution, which is a place where the defendant is located and which is a legitimate forced location

[2] Any person may arrest a flagrant offender without a warrant (Article 212 of the Criminal Procedure Act), and if such person who is not a public prosecutor or judicial police officer (hereinafter “public prosecutor, etc.”) arrests a flagrant offender, he/she shall immediately transfer the flagrant offender to a public prosecutor, etc. (Article 213(1) of the Criminal Procedure Act). Here, “i.e., time” does not necessarily have to be fasted when the arrest takes place, but rather, “necessary delay is delayed due to delayed delivery, continuation of the arrest, etc. without good cause,” and “when a public prosecutor, etc. arrests a flagrant offender or takes delivery of a flagrant offender, he/she shall request a warrant of detention within 48 hours, and if a public prosecutor, etc. fails to request a warrant of detention within such period, he/she shall immediately release the flagrant offender when he/she requests a warrant of detention within such period of time (Articles 213-2 and 200-2(5) of the Criminal Procedure Act). If he/she fails to request a warrant of detention within such period of time, the public prosecutor’s reasonable and adequate time to protect human rights after the arrest.

[3] The case affirming the judgment below holding that, in case where Boliria piracy defendants et al. were arrested, transported, delivered to the domestic investigation agency and detained and indicted after arresting and transporting the ship operated by the Korean marine transportation company on the high waters near the Asia Sea and committing an act of marine robbery, etc. on the ROK citizen crew, etc. on the ground that they committed an act of marine robbery, etc. on the ROK citizen crew, etc., the military personnel belonging to the Cheongri Maritime Team constitute arrest of the defendants as flagrant offender, not the prosecutor, etc., but the arrest of the defendants as flagrant offender, and the transfer of the defendants to the Republic of Korea after the arrest of the defendants constitutes an inevitable act of spatial and physical restriction, and it cannot be deemed that the delivery is delayed or the arrest is continued without justifiable grounds, and since the defendants were detained by the detention warrant issued by the police officer within 48 hours from the time of the receipt of the defendants' personal injury, the defendants were detained within the country at the time of lawful arrest, immediate delivery,

[4] In a case where Defendants, etc. were arrested, transported, and charged with charges at a domestic court on charges of committing an act of marine robbery, etc. on the ship operated by a marine transportation company of the Republic of Korea on the high waters near the Arari Sea and committing an act of marine robbery, etc. on the Republic of Korea’s crew members, the case affirming the judgment below that Defendants, excluding Defendant A, were able to fully recognize the fact of attempted murder with Eul with the intent to kill the captain B, and that there was a failure in the achievement of the original purpose, such as kidnapping of the ship, coercion, forced navigation to small horses, and demand for release, etc., if the piracy of this case occurred, it was intended to achieve the original purpose, even if the original purpose is not achieved, and it cannot be deemed that the Defendants conspired to kill the ship to kill the ship to take advantage of the cause in a situation where their survival is not possible, and since the remaining piracy except Defendant A, at the time, did not leave the body of the pilot, and thus, did not s/he were aware of the remaining life of the ship.

[1] Article 4 (1) of the Criminal Procedure Act / [2] Articles 200-2 (5), 212, 213 (1), and 213-2 of the Criminal Procedure Act / [3] Articles 4 (1), 200-2 (5), 212, 213 (1), and 213-2 of the Criminal Procedure Act / [4] Articles 6, 30, 136 (1), 144 (1) and (2), 336, 337, 338, 340 (1), (2), (3), and 342 of the Criminal Procedure Act, Article 6 (1), (1) and (2), and (4) of the Act on Punishment for Damaging Ships and Sea Structures, Article 4 (1) and (4) of the Criminal Procedure Act,

Defendant 1 and three others

Defendants and Prosecutor

Attorney Lee In-bok et al.

Busan High Court Decision 2011No349 decided September 8, 2011

All appeals are dismissed.

Each ground of appeal is examined.

1. As to the violation of territorial jurisdiction

A. Article 4(1) of the Criminal Procedure Act provides that “The territorial jurisdiction shall be the place of crime, the address, the domicile, or the present location of the defendant,” and “current location” in this context refers to the present location of the defendant at the time of prosecution, which is a place where the defendant is located and which is a legitimate forced location as

Meanwhile, any person may arrest a flagrant offender without a warrant (Article 212 of the Criminal Procedure Act), and if such objection is not a public prosecutor or judicial police officer (hereinafter “public prosecutor, etc.”) arrest a flagrant offender, he/she shall immediately transfer the flagrant offender to a public prosecutor, etc. (Article 213(1) of the Criminal Procedure Act). Here, the term “Immediate time” means that the time and time of the arrest must be fasted at the time and time, rather than that of the time when the arrest is delayed without justifiable cause, continuing the delivery or the arrest, etc. In addition, if the public prosecutor, etc. wishes to arrest a flagrant offender after the arrest of the flagrant offender or the delivery of the flagrant offender, he/she shall request a warrant of detention within 48 hours, and if the public prosecutor, etc. fails to request a warrant of detention within the said period, he/she shall immediately release the arrested flagrant offender when he/she makes a request for a warrant of detention within a certain period of time, and if he/she fails to request a warrant of detention within the said period, it shall not be deemed that the public prosecutor’s request for protection of human rights without an unreasonable arrest.

B. Review of the reasoning of the first instance judgment maintained by the lower court and the records reveals the following facts.

around 06: around 00 on January 21, 201, the Defendants were arrested by soldiers belonging to the Armed Forces as flagrant offenders in committing a crime, such as marine robbery, on the high seas, approximately 670 days away from the Maria Card, and were isolated from Mari-ri-ri-ri-ri-ri-ri (hereinafter referred to as the “instant vessel”). The Mari-ri-ri-ri-ri-ri-ri-si-si-si-si-si-si (hereinafter referred to as the “instant vessel”), taking into account various issues arising from long-distance escort, and the Defendants’ view favorable to the exercise of the right of defense regarding maritime issues in the vicinity of the Mari-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-si.

C. The first instance court determined that the arrest of military personnel belonging to the Cheonghae unit as a flagrant offender constitutes an arrest of a flagrant offender, not a prosecutor, etc., and that the demand for about 9 days from the arrest of the Defendants was inevitable due to spatial and physical constraints and cannot be deemed as a delay of delivery or continuous arrest without justifiable grounds. Furthermore, the first instance court presumed that the starting point of counting 48 hours from January 30, 201 when the police officer took over the Defendants’ personal injury was completed from around 04:30,00, and that the Defendants were detained by a detention warrant requested and issued within 48 hours thereafter, and thus, the Defendants were detained in Busan detention house at the time of prosecution by lawful arrest, delivery, and lawful detention. Thus, the first instance court determined that the territorial jurisdiction exists in the first instance court.

In light of the above legal principles and records, the above determination by the court of the first instance maintained by the court below is just, and there is no error in the misapprehension of legal principles as to territorial jurisdiction or arrest and detention of flagrant offenders under the Criminal Procedure Act, contrary to the allegations in the grounds of appeal by Defendant 4 counsel

2. As to the attempted murder, etc. of marine robbery related to the total shooting of soldiers

A. A. Joint principal offender under Article 30 of the Criminal Act is established by satisfying the subjective and objective requirements, namely, the commission of a crime through a collaborative process and the functional control by such collaborative intent. Therefore, a person who did not directly share and implement the elements of a crime among the conspiracys may be held liable as a so-called joint principal offender by meeting the above requirements. Meanwhile, in order to be recognized as a joint principal offender by directly sharing and not performing the elements of a crime, taking into account the status and role of the conspiracys in the entire crime, or control and influence over the criminal progress, etc., rather than merely do so by the conspiracys, it should be recognized that a functional control exists through an essential contribution to the crime (see, e.g., Supreme Court Decision 2007Do235, Apr. 26, 2007). In such a case, even if the conspiracys did not have been able to take any reasonable measures, such as the means and attitude of the crime, the number of persons participating in the crime, time and characteristics of the place, possibility of contact with others during the crime, etc.

B. Review of the reasoning of the first instance judgment maintained by the lower court and the records reveals the following facts.

The instant piracy, including the Defendants, conspiredd to threaten the instant vessel with firearms, to tow vessels and crew members, and to request for release. The instant piracy, centered on the two timbers and wharfs, took part in each of the following roles, such as the selection team for the hijacking of vessels, the surveillance of human nature and communication equipment inside the steering house, the engine room control, the boundary, interpretation, and cooking in the wing hub. Furthermore, even though they are aware of nationality after the hijacking of the instant vessel, the instant piracy was aware that the instant vessel was driving away from the instant vessel, but was approaching the instant vessel, and was approaching the external forces approaching Nonindicted Party 1’s vessel, such as the engine gun, by carrying weapons. At the time of the first operation of the naval fleet on January 18, 201, the instant piracy continued to take part in the instant steering boat and the instant wing fleet, and continued to take part in the instant wing fleet, not in the instant steering boat, but in the instant vessel.

Based on the above facts of recognition, the court below held that there was an implied conspiracy among the piracys in relation to this part of the crime, since it included in the conspiracys of the naval wave of the instant case, which was captured, to block the instant vessel by force, such as the total attack, during the process of towing the instant vessel to Somariri, and that it was in line with the above conspiracys to commit a shooting toward the naval team at the time. Furthermore, the court below held that Defendant 2, who was shootinged by the engine gun at the time, was liable as a co-principal as a matter of course as a co-principal, and Defendant 3 also bears the responsibility as a co-principal regardless of whether he participated in shooting at the time.

In light of the above legal principles and records, we affirm the fact-finding and judgment of the court below that held that the piracy of this case including the defendants included a total attack against soldiers, and that such act may be recognized as murder. In addition, according to the fact-finding and its employment evidence of the court below, it can be seen that Defendant 3 took a role of monitoring communications equipment within the steering house according to the division of duties inside the piracy of this case and participated in external boundary activities. In full view of the whole circumstances of the crime of this case, the contents of the solicitation, and the overall division of roles among the participants in the piracy of this case, even if the above defendant did not directly share the act of the piracy of this case, it shall be deemed that the above defendant was a person who has functional control over the act of murder at sea through its essential contribution. Although the court below's explanation was somewhat inappropriate, it is justified in the conclusion that the above defendant bears a joint principal liability for this part of the crime.

Ultimately, contrary to the allegations in the grounds of appeal by the aforementioned defendants, the court below did not err by misapprehending the legal principles as to joint principal offenders or by misunderstanding facts, which affected the conclusion of the judgment.

3. As to attempted murder, etc. by marine robbery related to the use of “humanideide”

The intention of murder does not necessarily require the intention of murder or planned murder, but it is sufficient if it is predicted and used that there is a risk of causing the death of another person due to one's own act, and its subjective prediction, etc. is not definite, but even if it is not definite, it can be acknowledged that the criminal intent of murder is dolusent intentional act (see Supreme Court Decision 2002Do995, Jun. 24, 2004, etc.). In addition, in the case of co-principal, if one of the co-principal has escaped from the conspiracy relationship before the other co-principal reaches the action, he shall not be held liable as a co-principal with regard to the other co-principal's act. However, the escape from the conspiracy relationship requires the removal of functional control of the criminal act performed by the competitor. Thus, in the event that the competitor participated in the conspiracy led to the implementation of another co-principal, it cannot be said that the conspiracy has deserted from the relation of conspiracy unless it has removed influence on the implementation, such as actively endeavoring to restrain the crime (see Supreme Court Decision 2009Do964, etc.

The court below acknowledged the following facts: (a) after the first operation of the Navy in the Navy, the instant naval 2, which ordered the crew members who were detained in hostage to get out of a wing beer when the attack of the Navy begins; (b) following the second operation of the Navy, one of the crew members, such as the victim non-indicted 2, etc., was killed in a wing beer; and (c) at the time the wing 2nd operations commenced, it was hard for the crew to get out of the wing beer due to the threat attack of the Navy; and (d) at the time the wing 2nd operations commenced, the court below determined that there was a prior conspiracy on the use of the crew as the "wing wing 2" if the naval 2nd between the piracys in the instant case were to take out of the wing operations, and that the crew could die in the event of leaving the wing 3rd 2nd wing 2nd wing 2nd wing 2nd 2nd 2nd wing.

In light of the above legal principles and records, the fact-finding and judgment of the court below are just and acceptable, and contrary to the defense counsel's grounds of appeal, there were no errors in the misapprehension of legal principles as to joint principal offender or by mistake of facts, which affected the conclusion of judgment

4. As to Nonindicted 2’s attempted murdering marine robbery related to the total shooting

A. As to Defendant 1 (hereinafter “Defendant 1”)’s ground of appeal

원심은, 그 채용 증거에 의하여 인정한 다음과 같은 사실들 및 그에 대한 평가를 토대로 피고인 1이 공소외 2를 살해할 의도로 공소외 2에게 총격을 가한 사실을 충분히 인정할 수 있다고 판단하였다. 즉 ① 피해자 공소외 2는 제2차 구출작전 당시 좌복부에서 오른쪽 옆구리 쪽으로 관통되는 총상 및 왼쪽 팔이 거의 떨어져 나갈 정도의 분쇄골절 총상 등을 입은 채 이 사건 선박의 조타실에서 발견되었는데, 그 부상 정도나 당시 상황에 비추어 공소외 2는 이 사건 선박의 윙브리지에서 조타실로 돌아온 후 위와 같은 총상을 입었을 가능성이 높다. ② 공소외 2의 좌측 대퇴골의 대전자부(좌측 둔부측) 창상 부위에서는 이 사건 해적들이 사용한 AK소총탄의 파편이 발견되었고, 당시 윙브리지 및 조타실로 해군의 위협사격에 의한 총알이 빗발치는 상황에 비추어 위 파편이 해적들의 대응사격과정에서 발생한 유탄에 의한 것일 가능성은 낮다. ③ 당시 조타실에 있던 해적들은 총기를 소지하지 아니하고 있었거나 해군의 공격이 계속되자 두목의 지시에 따라 모두 조타실 밖으로 총기를 버렸음에 반하여, 피고인 1은 두목의 지시에 응하지 아니한 채 조타실에서 AK소총을 계속 소지하고 있었고 공소외 2가 총상을 입은 후 해군 진입이 임박한 시점에서야 조타실 아래 선실로 피신하면서 그곳 계단 부근에 AK소총을 버렸다. ④ 공소외 2와 함께 조타실에 피신해 있던 공소외 3 등은 당시 피고인 1이 총을 들고 공소외 2의 왼쪽에 서 있는 것을 목격하였고, 해적들 중 누군가가 “캡틴, 캡틴”이라며 공소외 2를 찾는 소리 및 그로부터 얼마 지나지 않은 시점에서 해군의 총소리와는 다른 총소리를 들었으며, 공소외 3은 피고인들이 해군에 체포된 직후부터 공소외 2에게 총격을 가한 해적이 피고인 1이라고 지목하였다.

Examining the reasoning of the judgment below in comparison with records, the fact-finding and judgment of the court below are just and acceptable. Contrary to the allegations in the grounds of appeal by the above defendant, there is no error of law by

B. As to the Prosecutor’s Grounds of Appeal

(1) As to Defendant 1

Since a final appeal is a follow-up trial on the judgment of the appellate court, matters not subject to a review in the appellate court are not different from the scope of the judgment of the court of final appeal, so the grounds for appeal not alleged in the appellate court as the grounds for final appeal or not subject to a review by the appellate court ex officio cannot be considered as the grounds for final appeal (see Supreme Court Decision 2010Do7947, Jan. 27, 201

This part of the grounds of appeal is that the court below erred in finding Defendant 1 as a sole criminal even though the prosecutor prosecuted Defendant 1 as a joint principal offender with other Defendants. However, this does not constitute legitimate grounds of appeal, as it is obvious that it is not subject to trial in the appellate court, and it does not constitute the grounds

(2) As to the remaining Defendants

The court below determined that the conspiracy of the piracy of this case merely intended to achieve its original purpose by taking into account hostages, etc. when a situation that obstructs the achievement of its original purpose, such as kidnapping of a ship, coercion of navigation into Somaria, and demand for release price, etc., and it cannot be deemed that there was a conspiracy to murder for the purpose of retaliationing the cause under the circumstances where the original objective is no longer achieved and the existence of their survival is not possible. Furthermore, the court below held that the remaining piracy except Defendant 1 at the time, other than Defendant 1, discarded a weapon out of the steering house in accordance with the second order, abandoned the resistance by taking the body out of the steering house, avoiding the gross eggs, or getting out of the steering house, and the conspiracy relation as to piracy was actually terminated, and thus, it could not be viewed that Defendant 2, Defendant 3, and Defendant 4, who were born for their survival thereafter, attempted to kill Nonindicted 2 by murdering the gun.

In light of the aforementioned legal principles and records, the judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there is no error of law by misapprehending the legal principles as to co-principals, or by misapprehending the facts, thereby affecting the conclusion of the judgment. Supreme Court Decision 2010Do927 Decided January 13, 201, etc. cited as the grounds of appeal, which is inappropriate to invoke the case

5. As to the Defendants’ assertion of unfair sentencing

Examining various circumstances, such as the Defendants’ age, conduct, intelligence, and environment, and the motive, means, and consequence of the instant crime, the circumstances after the commission of the crime, etc., the determination of the lower court’s punishment cannot be deemed to be extremely unfair even in light of the circumstances asserted by the Defendants.

6. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)