[1] Whether an indictment against one of the accomplices includes a crime of conspiracy to which the provisions of the Criminal Act concerning an accomplice cannot be applied among the mandatory accomplices under Article 253(2) of the Criminal Procedure Act, which provides that the statute of limitations may be suspended against other accomplices by prosecution (negative)

[2] The case reversing the judgment of the first instance which found the Defendant guilty on the grounds that the statute of limitations has expired, and that the prosecution against the Defendant was not affected by the progress of the statute of limitations on prosecution against the Defendant, and that the prosecution against the Defendant against the Defendant against the Defendant cannot affect the progress of the statute of limitations on the grounds that, in case where the Defendant conspired with the Defendant to deliver the bribe to the public officials Eul and was indicted for delivery of the third-party brain Bribery, and the prosecution against the Defendant was charged together with the Defendant and the judgment of conviction against the Defendant became final and conclusive later, and that the prosecution against the Defendant against the Defendant was finalized

[1] The Criminal Procedure Act provides for the suspension of the statute of limitations for one of the accomplicess in order to ensure the equitable punishment among the accomplices. As such, it shall be strictly interpreted, and it shall not be expanded or reduced in the direction unfavorable to the defendant. However, the general provisions of the Criminal Act on accomplices or aiding and abetting and abetting cannot be applied among the native offenders who require the existence of a single-class act of one of the necessary accomplices in the lecture, and the constituent elements and quality of the crime are not the same. In light of the fact that the statutory punishment is separately provided, it is completely different from the accomplices stipulated in the Criminal Act. Nevertheless, the application of the provision on the suspension of the statute of limitations for public prosecution between the strong and the one who is in the relationship of one of the accomplices is to ensure the equitable punishment among the accomplices. Accordingly, it is unreasonable to interpret the provision on the crime of aiding and abetting and abetting under the Criminal Act, which is disadvantageous to the defendant, as it does not constitute an indirect accomplice under the Criminal Procedure Act without any legal and logical basis.

[2] The case reversing the judgment of the court of first instance which found the defendant guilty on the ground that, in case where: (a) the defendant conspired with Gap to deliver a bribe to a public official Eul; (b) the defendant was prosecuted for delivery of money to a third party; (c) the accomplice Gap; (d) the person who received the bribe Eul; and (e) the person who received the bribe Byung was prosecuted for the bribe; and (e) the conviction against Byung became final and conclusive later than the conviction against Gap; and (e) the judgment of conviction against Byung became final and conclusive, the prosecution against the defendant shall be acquitted pursuant to Article 326 subparagraph 3 of the Criminal Procedure Act on the ground that it is obvious that the prosecution against the accomplice Gap was filed more than five years after the lapse of the statute of limitations period, except for the suspension period of the statute of limitations due to an indictment against the accomplice Gap; and (e) the defendant was not related to the criminal law and the prosecution against the accomplice Eul does not affect the progress of the statute of limitations against the defendant.

[1] Article 12(1) of the Constitution of the Republic of Korea; Articles 1(1), 30, 31, 32, and 34 of the Criminal Act; Articles 253(1) and (2) of the Criminal Procedure Act / [2] Articles 30, 129(1) and 133(2) of the Criminal Act; Articles 253(1) and (2), 326 subparag. 3 and 364(6) of the Criminal Procedure Act; Article 3 of the Addenda (amended by Act No. 8730, Dec. 21, 2007); Article 249(1)4 of the former Criminal Procedure Act (amended by Act No. 8730, Dec. 21, 2007)

[1] Supreme Court Decision 2001Do5158 Decided December 28, 2001 (Gong2002Sang, 440) Supreme Court Decision 2009Do3642 Decided April 28, 201 (Gong2011Sang, 1212) Supreme Court Decision 201Do15137 Decided March 29, 2012

Defendant

Both parties

Freeboard Kim & 1 other

Law Firm Chungcheong Law, Attorneys Lee Jong-soo et al.

Incheon District Court Decision 2011Gohap430 Decided September 1, 2011

The judgment of the court below is reversed.

Acquittal of the Defendant

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts or misapprehension of legal principles as to the statute of limitations and suspension thereof

Article 3 of the Addenda of the Criminal Procedure Act (amended by Act No. 8730, Dec. 21, 2007); Article 249(1)4 of the former Criminal Procedure Act (amended by Act No. 8730, Dec. 21, 2007); Article 253(2) of the Criminal Procedure Act provides that the suspension of prescription due to an indictment against one of the accomplices has an effect on the other accomplices; and Article 253(2) of the Criminal Procedure Act has run from the time the judgment in the relevant case became final and conclusive. Thus, it should be considered that the alternative accomplice in the lecture or the necessary accomplice is not included in the above accomplice.

Therefore, the prosecution of this case should be pronounced acquitted because the prosecution of this case was instituted after the expiration of the statute of limitations.

2) Unreasonable sentencing

In light of the fact that the Defendant’s mistake is against the truth-finding, and that the Defendant is able to support three self-employed persons entering a large amount of education expenses and the old age of 80, and his family members are responsible for their livelihood. Nonindicted Party 1 led to the acquisition and resale of land allotted by the authorities in recompense for development outlay and the Defendant does not pass on and move down money as investors, the sentence of imprisonment (eight months) of the lower court is too unreasonable.

B. Prosecutor - Unreasonable sentencing

This case is a case where the defendant purchased the land allotted by the authorities in recompense for development outlay in this case and requested the viewing public officials to deliver a bribe of KRW 60 million in response to their request, and delivered the bribe to Nonindicted 2. The defendant has been actively engaged in the crime. The contents of solicitation are highly related to illegal business operations, and the contents of solicitation are highly related to illegal business operations, and the crime is extremely poor, such as completely denying the crime at the time of the prosecutor's investigation and attempting to conceal the crime. Thus, the sentence of the court below is unreasonable.

2. Summary of the facts charged

(a) Basic facts;

1) Status of the parties

The Defendant engaged in the construction business, Nonindicted Party 1, while engaging in the construction business, operated the “○○ Real Estate” located in the Nowon-gu, Seoul Special Metropolitan City (number 1 omitted), Nonindicted Party 3, a public official belonging to Seocheon-si, who was working as the head of the City and Urban Administration Team from June 9, 2003 to take overall charge of the affairs related to the development recompense land, such as the management, sale, etc. of the land allotted in recompense for development outlay owned by Seocheon-si, and Nonindicted Party 2, a police officer belonging to the Seocheon-si Police Station, who was engaged in the duties of grasping general trends, such as the events of Seocheon-si, Group civil petitions, and policy intelligence collection, while entering and visiting the city as a police officer belonging to the Seocheon-si Police Station.

2) The process of resolution on crime

The land used for the temporary parking lot from 405.3 square meters of the Dong-dong (number 2 omitted) in Seocheon-si, Seocheon-si, Seoul Special Metropolitan City (hereinafter “instant land recompense for development recompense”), which was owned by the land authorities in recompense for development recompense for development recompense for development recompense for development recompense for the reasons that the sale of the land would be more serious in the surrounding area if sold at the time of sale, even though there was an application for purchase from Non-Indicted 4, which is the possessor of some of the land at around July 2004, the sale of the land in recompense for development recompense for development recompense for development recompense for development recompense for the land in Seocheon-si, Busan Special Metropolitan City (hereinafter “instant land secured for development recompense for development recompense for development recompense for development recompense for development recompense for development recompense for development recompense for development recompense for development recompense for development recompense for development recompense for development recompense for development recompense for development recompense for development recompense for development recompense for development recompense for development recompense for development

The Defendant purchased the land allotted by the authorities in recompense for development outlay in common with Nonindicted Party 1 and then sold it again and distributed it to Nonindicted Party 1. The Defendant et al. did not have the right to purchase the land allotted by the authorities in recompense for development outlay under a private contract because it did not meet the requirements prescribed in the proviso of Article 2 of the above Rule. Accordingly, the Defendant and Nonindicted Party 1 asked Nonindicted Party 3, who is a public official in charge of the land allotted by the authorities in recompense for development recompense for Ycheon-do, to purchase the land in recompense for development recompense for the instant case at a

On February 2, 2005, the Defendant discussed whether to give a bribe to Nonindicted 1 and 2, or to Nonindicted 3 at the office of “○○ Real Estate” (the trade name at that time was “△△ Real Estate”) operated by Nonindicted 1, which is located in the Dong-dong, Seocheon-gu, Seocheon-gu, Seoul, Seoul, (the lot number 1 omitted). Ultimately, the Defendant recruited Nonindicted 2 to deliver the bribe to Nonindicted 3, a sum of KRW 60 million by collecting KRW 30 million and KRW 30 million by Nonindicted 1.

(b) Crimes by defendants;

On February 3, 2005, the Defendant transferred KRW 30 million to the new bank account (Account Number omitted) with Nonindicted Party 1, according to the above conspiracy with Nonindicted Party 1, and Nonindicted Party 1 deposited KRW 60 million, including KRW 30 million, which was received from the Defendant on the same day, from the said account in cash on the same day, and around 19:00 on the same day, the Defendant delivered the instant land allotted to Nonindicted Party 2, who is a public official in charge of the land allotted by the authorities in recompense-si, Seocheon-gu, Seocheon-gu, Seoul, 1121, which was located in the 1173-dong, Seocheon-gu, Seocheon-gu, Seocheon-gu, Seoul, and then delivered KRW 60 million to Nonindicted Party 2.

Accordingly, in collusion with Nonindicted Party 1, the Defendant provided money and valuables to Nonindicted Party 2 for the purpose of giving a bribe in connection with public official’s duties.

3. Determination

A. Determination as to whether the statute of limitations has expired

1) Facts of recognition

According to the records, the following facts are recognized:

In collusion with the Defendant, Nonindicted 1, who delivered KRW 60 million to Nonindicted 2, who is a public official in charge of the land allotted by the authorities in charge of the recompense for development outlay, was prosecuted for violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) regarding the act of delivering bribe on January 10, 206, which was delivered KRW 60 million to Nonindicted 2. Nonindicted 2, who received KRW 60 million from the Defendant and Nonindicted 3 on the same day, and Nonindicted 3 also received KRW 20 million from Nonindicted 2 on the same day.

In the case No. 2006No1774 on April 20, 207, the Seoul High Court found Nonindicted Party 1 guilty of the crime of delivery of third-party 1, and sentenced Nonindicted Party 2 to one year of imprisonment, and one year of imprisonment, and three years of imprisonment, by recognizing Nonindicted Party 3 guilty of the crime of acquisition of third-party 1’s brain, etc., and sentenced Nonindicted Party 3 to three years of imprisonment. The above conviction against Nonindicted Party 1 was finalized on April 27, 2007 due to Nonindicted Party 1’s failure to appeal.

On the other hand, Nonindicted 2 and Nonindicted 3 appealed against the above High Court judgment, and the Supreme Court dismissed all of the appeals filed by Nonindicted 2 and Nonindicted 3 on July 27, 2007.

The Defendant’s crime of this case was established around 19:00 on February 3, 2005, which delivered KRW 60,000,000 to Nonindicted Party 2, and the prosecution of this case was instituted on June 29, 201.

2) Key legal provisions

○ Criminal Procedure Act

Article 253 (Suspension of Limitation Period and Its Effect)

(1) A period of prescription shall cease to toll on the institution of a public prosecution, and begin to toll when a judgment dismissing a public prosecution or a judgment indicating a violation of

(2) The suspension of prescription under the preceding paragraph against an accomplice shall take effect against another accomplice, and proceed to run from the time the judgment on the case becomes final and conclusive.

3) Issues

The facts charged of this case are crimes falling under Articles 133(2) and (1) of the Criminal Act and Article 129(1) of the Criminal Act, and the statutory penalty is imposed on “a person who has been sentenced to imprisonment for not more than five years” under Article 249(1)4 of the former Criminal Procedure Act (amended by Act No. 8730, Dec. 21, 2007). The statute of limitations is five years under Article 249(1)4 of the former Criminal Procedure Act (amended by Act No. 8730, Dec. 21, 2007).

As seen earlier, if only the facts charged against the Defendant were to be based, the Defendant’s crime of this case was established around 19:00 on February 3, 2005 and terminated. Since the instant indictment was instituted on June 29, 201, it is evident that the instant indictment was instituted five years after the completion of the criminal act.

However, while the statute of limitations on the instant facts charged is in progress, the statute of limitations period for the instant facts charged differs depending on how to appoint the accomplice as provided in Article 253(2) of the Criminal Procedure Act, since the relationship between the Defendant and Nonindicted 1, 2, and 3 is different with respect to the instant facts charged, the statute of limitations period for the instant facts charged differs depending on how to appoint the accomplice as provided in Article 253(2).

In other words, the instant public prosecution against the Defendant was instituted on 147 days after the completion of the criminal act. If the period of the suspension of prescription is calculated based on the date of confirmation of the conviction against Nonindicted Party 1, the instant public prosecution was instituted after the expiration of the statute of limitations, and if the statute of limitations is suspended on the basis of the date of confirmation of the conviction against Nonindicted Party 2 and 3, the instant public prosecution was instituted before the expiration of the statute of limitations.

4) The meaning of an accomplice under Article 253(2) of the Criminal Procedure Act

Article 253 of the Criminal Procedure Act provides that the suspension of prescription against one of the accomplices has effect on other accomplices, but the Criminal Procedure Act does not have any provision regarding the meaning and scope of the accomplice separately. On the other hand, Section 3 of Part I of the Criminal Procedure Act provides for the type of accomplice as the type of co-offenders, in addition to the accomplice as provided in the Criminal Act, the provisions on co-principals, aideds, aideds, aideds, and Indirects. However, Article 253 of the Criminal Procedure Act provides that the elements of an accomplice as provided in Article 253 of the Criminal Procedure Act include the number of co-offenders who realize crimes established on the premise of two or more participations or actions of organizations.

However, even if the term used in a provision of any Act intends to be interpreted specially differently from the ordinary meaning of the language and text by focusing on the legislative intent and purpose of the provision, it is difficult to disregard the relationship between other provisions and other Acts or the systematic framework of the entire legal system, so there is a certain limit in doing so. The Criminal Procedure Act provides the criminal procedure procedure to realize the penal authority provided in the Criminal Act, and the statute of limitations provides the temporal scope of the exercise of the penal authority. Therefore, in interpreting the statute of limitations suspension of the statute of limitations, it goes beyond the bounds of interpretation as it goes against the systematic relationship between the criminal law that provides the subject of the exercise of the penal authority, the requirements for the composition of the crime, etc., and goes against the bounds of interpretation, as it goes beyond the bounds of interpretation, in interpreting the accomplice in the Criminal Act without any special legal or logical basis.

As the Criminal Procedure Act provides an exception to expanding the personal scope of the effect of prosecution in order to ensure the equitable punishment among accomplices, it shall be strictly interpreted, and it shall not be expanded or reduced in the direction unfavorable to the defendant (see Supreme Court Decision 2011Do15137, Mar. 29, 2012). However, the general provisions of the Criminal Act on accomplices or aiding and abetting cannot be applied to one another, which require the existence of an act that is a kind of one of the necessary accomplices in the course of lectures in the course of lecture, and it cannot be applied (see, e.g., Supreme Court Decision 2001Do5158, Dec. 28, 2001). In light of such factors as the composition and quality of the crime, and the statutory punishment thereof, it is not the same as that of the accomplices, and it is also stipulated that the scope of the statute of limitations of prosecution should be applied to the criminal defendant merely on the ground that it is an essential one of the necessary accomplices in the direction that it is an essential one of the prosecution.

Therefore, the accomplice under Article 253 (2) of the Criminal Procedure Act refers only to the co-principal, the teacher-principal, the assistant-principal, and the indirect principal who are co-offenders defined in the Criminal Code, and the accomplice who is not applicable to the provisions of the Criminal Code among the strong co-offenders required in the lecture does not correspond to this.

B. Sub-committee

Therefore, the statute of limitations for the Defendant’s crime of this case was initiated from February 19, 200, when the crime was established, and the prosecution against Nonindicted Party 1, who is an accomplice, was suspended from January 10, 2006, which was the prosecution against the crime of this case, and came back again from April 27, 2007, which became final and conclusive. As such, it is obvious that the prosecution of this case was filed five years after the lapse of the five years, excluding the suspension period of the statute of limitations due to the filing of the prosecution against the accomplice from the time when the crime of this case was completed, and thus, the acquittal is to be pronounced pursuant to Article 326 subparag. 3 of the Criminal Procedure Act. Since Nonindicted Party 2, 3 and the Defendant do not constitute an accomplice relationship under the Criminal Act, the prosecution against the Defendant does not affect the progress of the statute of limitations for the prosecution against the Defendant.

Therefore, the judgment of the court below which found the defendant guilty with the exception that the statute of limitations has expired is erroneous in the misunderstanding of facts or misunderstanding of legal principles, and the defendant's assertion

4. Conclusion

Therefore, the judgment of the court below is reversed under Article 364(6) of the Criminal Procedure Act without examining the defendant and the prosecutor's allegation of unfair sentencing, and the judgment below is reversed and it is again decided as follows after pleading.

:

The summary of the facts charged is as shown in paragraph (2) above, and as seen in paragraph (3) above, since the crime of this case constitutes a case where the statute of limitations has expired, an acquittal shall be pronounced pursuant to subparagraph 3 of Article 326 of the Criminal Procedure Act.

Judges Han-yang (Presiding Judge)

1) In preparation for this, an accomplice is a student voluntary accomplice under the Criminal Code.