Where a judgment of the first instance court on part of the facts prosecuted for concurrent crimes is omitted, the disposition in the appellate court shall be taken.

In the event that a judgment is rendered only on part of several charges charged for concurrent crimes and a judgment is not rendered on the remaining part of the charges, if an appeal against a judgment rendered has been filed, that part of the judgment became known to the appellate court and the judgment is rendered in the appellate court. The judgment of the first instance is erroneous in the misapprehension of law that affected the conclusion of the judgment, and such illegality is subject to ex officio investigation.

Article 364 of the Criminal Procedure Act

Supreme Court Decision 4293 Form831 Delivered on December 16, 1960

Defendant

Prosecutor and Defendant

Attorney Han-chul, Counsel for defendant

Busan District Court Decision 96Gohap23 delivered on June 14, 1996

The judgment of the court below is reversed.

Imprisonment with prison labor for the crimes of Articles 2 and 3 as stated in the judgment of the defendant 1, five years, and five years, respectively.

The number of detention days prior to the sentence of the original judgment shall be included in the above sentence with respect to the crime No. 2 and 3 of the judgment.

Of the facts charged in this case, the charge of murdering by a teacher and the violation of the Punishment of Violence, etc. Act due to a bodily injury shall be acquitted.

1. Summary of grounds for appeal;

The gist of the first point in the grounds for appeal by the defendant and his defense counsel does not have any fact that the defendant forms a criminal organization called lilsung, and there is no fact that the defendant conspireds with the non-indicted 2, 3, and 4 to kill the victim 1, and the non-indicted 1 merely ordered the above non-indicted 2, etc. who met the non-indicted 2, etc. pursuant to the above non-indicted 1 to use the money for the escape fund to the above non-indicted 2, etc., and despite the fact that the court below did not allow the above non-indicted 2, etc. to use the money for the escape fund, the court below found the non-indicted 2, etc. guilty of the facts that the non-indicted 2, etc. among the facts charged in this case did not affect the conclusion of the judgment by misunderstanding the value judgment of evidence, and the summary of the second point in the grounds for appeal is divided in depth after the crime, and that the non-indicted 1 had any relation with the victim's hand in the world of organized violence.

2. Determination on the grounds for appeal

A. Therefore, if the evidence duly admitted by the court below is examined based on the records as to the assertion of mistake of facts by the defendant and his defense counsel, it is not reasonable to discuss the appeal since it can be sufficiently recognized by the court below as being guilty, for the following reasons: (a) the defendant reconvened the organization of crime that is lursung, in collusion with the non-indicted 1, abetted the non-indicted 2 et al. to kill the victim; and (b) raising the escape fund

B. Next, in full view of all the circumstances surrounding the Defendant and the Prosecutor’s assertion of unfair sentencing, including the background and result of the instant crime, Defendant’s ordinary character and conduct, age, relationship with the victim, and circumstances after the crime, etc., the sentence imposed by the lower court on the Defendant is deemed to be appropriate, and the above appeal guidance is without merit, on the grounds that it cannot be deemed that it is too somewhat weak or unreasonable.

C. Finally, we examine the prosecutor's argument of mistake of facts.

The court below found the defendant guilty of the facts charged that the defendant conspiredd with the non-indicted 1 and caused the non-indicted 2 to murder the victim 1, but the above non-indicted 2 et al. failed to start murder. The above non-indicted 1 recovered arms from them immediately after the renunciation of the above non-indicted 2 et al. and caused the murder to the non-indicted 5 and 6, and the above non-indicted 5 et al. murdered the above victim. The above non-indicted 1's act of aiding and abetting the above non-indicted 5 et al. was committed under the conspiracy with the defendant, so if the defendant attempted to commit the crime of aiding and abetting the above non-indicted 2, it is insufficient to find that the defendant and the non-indicted 1 conspired the above non-indicted 2 to kill the above victim, or that the defendant and the above non-indicted 1 conspired to share the above victim with the above non-indicted 1, or that the above non-indicted 2 et al. attempted to murder the above victim.

On the other hand, the opinion of the court below that if the defendant intends to be held liable to aid the above non-indicted 1 to murder, it should be recognized as having the same facts as the court below's opinion. On the other hand, according to the records, it is also reasonable to find that there is no evidence to acknowledge such conspiracy. Thus, the above consultation on appeal is without merit (It is insufficient to recognize the above facts of conspiracy only by the indirect facts such as the relation between the defendant and the above non-indicted 1 and the non-indicted 5, the defendant and the above non-indicted 1 instigated the above non-indicted 2 and the time close to the above non-indicted 1, etc.

3. However, according to the records, as seen below, the prosecutor brought a prosecution against the injured teacher against the victim 2 as to the non-guilty portion, and the court below did not render a decision. In the case where the judgment was rendered only on part of several charges charged for concurrent crimes and the judgment became known as to the remaining part of the charges, the part of the judgment became known to the appellate court and the judgment was rendered in the appellate court. The judgment of the court of first instance is erroneous in the misapprehension of law that affected the conclusion of the judgment. Such illegality is an ex officio investigation. In this regard, the judgment of the court of first instance shall not be reversed in its entirety.

4. Conclusion

Therefore, the judgment of the court below is reversed and it is decided as follows.

Criminal facts and summary of evidence

The summary of the facts constituting the crime and the evidence in the judgment of the court below are as follows: "the defendant was notified of the summary order of one million won as a result of the violation of the Punishment of Violences, etc. Act at the Busan District Court on February 5, 1993; on March 10 of the same year, the above summary order was confirmed; and on March 10 of the same year, "non-indicted 1" in the summary column of the evidence as "non-indicted 1" in the judgment of the court below as "one victim outside the public prosecution"; therefore, it is identical to the description in each corresponding column except for the correction of "non-indicted 1" in the summary column of evidence as "one victim outside

Application of Statutes

1. Article applicable to criminal facts;

Article 4 subparag. 2 of the former Punishment of Violences, etc. Act (amended by Act No. 4590 of Dec. 10, 1993), Articles 250(1), 31(2), 255, and 30 of the Criminal Act (the occupation of murderer at the time of sale, including the occupation of murderer), Article 151(1) of the former Criminal Act (amended by Act No. 5057 of Dec. 29, 1995), Article 151(1) of the former Criminal Act (amended by Act No. 5057 of Dec. 29, 1995)

1. Handling of commercial concurrent crimes;

Articles 40 and 50 of the Criminal Act (Punishment of punishment and choice of imprisonment with prison labor for Nonindicted 2, which is the most severe judgment of the criminal committed among the crimes of escape of each criminal committed on board)

1. Handling concurrent crimes;

(a) The latter part of Articles 37 and 39(1) of the Criminal Act (the first head of the judgment with a summary order confirmed, and the crime of violation of the Punishment of Violences, etc. Act due to the organization of a criminal organization in the judgment);

(b) former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (aggravating with the punishment imposed as to the crime of aiding and abetting homicide and the crime of aiding and abetting homicide committed as to the crime committed as to the crime committed as to the crime committed as to the preparation of a heavier judgment)

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act ( normal reference to the fact that there is no history of criminal punishment of suspension of qualification or more, and that there is a penance)

1. Calculation in the number of detention days before sentencing;

Article 57 of the Criminal Act

Parts of innocence

Of the facts charged of this case, the summary of the Defendant’s violation of the Punishment of Violence, etc. Act by murdering and injuring the victim 1 (the age of 26) together with Nonindicted 1 on July 7, 1993. At around 00:05, Nonindicted 1 conspiredd to kill the victim 1 (the age of 26) on the front side of the Industrial Bank located in Busan Southern-gu, Busan, the following day, and the above Nonindicted 5 instigated the victim 1 to stop gas guns on the face of the victim 1, and Nonindicted 6 knife the knife, knife the knife, and knife the knife knife knife knife knife knife knife knife knife knife knife knife knife knif knif knif knif k.

It is so decided as per Disposition for the above reasons.

Judges Kim Jin-jin (Presiding Judge) For the purpose of leap nives