In a case where Defendant A, B, and C were co-principals of the crime of evading compulsory execution with a false transfer of call text in the name of Defendant C by changing the name of Defendant C, and Defendant C was accused of charges of evading compulsory execution with a false statement to the effect that transfer of call text to Defendant C was not false, the case holding that there was an error of misapprehension of legal principles in the judgment of the court of first instance, which found Defendant C guilty, in the case where Defendant A, B, and Defendant C were indicted on charges of evading compulsory execution with a false statement to the effect that transfer of call text to Defendant C was not false, on the ground that Defendant C, B, and C made a false statement

In a case where Defendant A, B, and C were co-principals of the crime of evading compulsory execution with a false transfer of call text under the name of Defendant C by changing the name of Defendant C, and they were accused of charges of evading compulsory execution with a false statement to the effect that transfer of call text to Defendant C was not false, the case held that the court below erred by misapprehending the legal principles of the judgment of the first instance which acknowledged the crime of aiding and abetting Defendant C and the crime of aiding and abetting and abetting Defendant C to commit the crime of aiding and abetting the crime of aiding and abetting Defendant C, on the ground that the Defendants’ act of aiding and abetting the criminal escape to escape punishment was not false, since it cannot be deemed that the Defendants’ act of aiding and abetting the joint principal offender with a close relation to concealment of their criminal acts was merely an abuse of their defense rights, on the grounds that there was no possibility of expectation of lawful act as to the act of aiding and abetting the criminal and the crime of aiding and abetting the criminal committed to Defendant C.

Articles 30, 31(1), 151(1), and 327 of the Criminal Act; Article 325 of the Criminal Procedure Act

Defendant 1 and two others

Defendant 1 and one other and the prosecutor

Park Jong-min et al.

Law Firm L&WK, Attorney Go-won

Busan District Court Decision 2015Gohap886 Decided July 16, 2015

All the judgment below is reversed.

Defendant 1 shall be punished by imprisonment with prison labor for eight months and by imprisonment for six months.

However, with respect to Defendant 1, the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

Seized evidence No. 1 shall be forfeited from Defendant 2.

Defendant 1's escape from each criminal, Defendant 2's escape from each criminal, and Defendant 3's acquittal from each other.

The summary of each of these judgments shall be publicly notified.

1. Summary of grounds for appeal;

Defendant 1 and Defendant 2 asserted that, with respect to each sentence against the Defendants of the lower judgment (two years of probation, one hundred and twenty hours of community service, six months of imprisonment, and a fine of KRW 7.5 million in the month of imprisonment in August), the Defendants 1 and Defendant 2 are too unafford, and the Prosecutor is too unafford and unfair.

2. Ex officio determination

We examine the part concerning criminal escape and criminal escape ex officio prior to the judgment on the grounds for appeal by Defendant 1, Defendant 2, and the prosecutor.

A. Summary of this part of the facts charged

(1) Defendant 2 and Defendant 3’s aiding and abetting criminals related to their complaint

around October 2013, the Defendants were accused of the charge of evading compulsory execution from Nonindicted Party 1 (the Nonindicted Party: Nonindicted Party 1). Around that time, Defendant 1 asked Defendant 1 to the effect that “Around May 2013, the instant call text was traded at KRW 150 million from Defendant 3, and from that time, the call text was actually operated,” and Defendant 1 consented thereto.

After that, on January 3, 2014, Defendant 1 entered into a telephone conversation with a police officer in charge of the instant accusation case, and made a false statement as if he/she actually purchased KRW 150 million from that time and had been operated. On February 21, 2014, Defendant 1 entered the protocol of statement with the police officer in charge of the instant accusation case with the same purport, and made a false statement to the same effect on February 24, 2014, and on March 25, 2014, Defendant 1 entered into the protocol of statement with the police officer in charge of the instant accusation at the same time, and made a false statement to the effect that he/she made a telephone conversation with the prosecutor in charge of Busan District Prosecutors’ Office on June 27, 2014.

As a result, the Defendants instigated Defendant 1 to escape a person who committed a crime corresponding to a fine or heavier punishment.

(2) The defendant 2 and the defendant 3's aiding and abetting the criminal defendant 1 to file a complaint

around September 2013, Defendants filed a complaint with the same content as Nonindicted Party 1, and around that time, Defendant 1 asked Defendant 1 to the same purport, and Defendant 1 consented thereto.

After that, on September 18, 2014 upon the request, Defendant 1 prepared an interrogation protocol of the same purport at the investigation station and office located in the Busan High Police Station, Busan High Police Station. On September 19, 2014, Defendant 1 operated the instant protocol to the police officer in charge, and submitted the false statement to the police officer in charge on September 26, 2014, and made a false statement to the same effect.

As a result, the Defendants instigated Defendant 1 to escape a person who committed a crime corresponding to a fine or heavier punishment.

(3) Defendant 1’s accusation against Defendant 2 and Defendant 3

According to Defendant 2 and Defendant 3’s teachers, the Defendant: (a) made a telephone conversation with the police officer in charge of the instant accusation case on January 3, 2014; (b) made a false statement as if the instant call text was actually purchased KRW 150 million from that time to that time; (c) made a false statement with the police officer in charge of the instant accusation case on February 21, 2014; and (d) made a statement with the police officer in charge of the instant call text to the same purport; (b) made a false statement with the police officer in charge of the instant case on February 24, 2014 and March 25, 2014; and (c) made a false statement to the same effect while making a telephone conversation with the Busan District Prosecutors’ Office in Busan District Prosecutors’ Office on June 27, 2014.

As a result, the defendant had a person who committed a crime corresponding to a fine or heavier punishment escape.

(4) Defendant 1’s criminal escape related to the complaint against himself

As above, according to the teachers of Defendant 2 and Defendant 3, the Defendant prepared an interrogation protocol to the same effect at the investigation station and office located in the Busan Shodong-gu Office, Busan on September 18, 2014; on September 19, 2014, the instant call text was actually operated to the police officer in charge; submitted the account transaction statement in the name of the Defendant, which is a false content; and made a false statement to the police officer in charge on September 26, 2014.

As a result, the defendant had a person who committed a crime corresponding to a fine or heavier punishment escape.

B. Determination

(1) Legal principles

The act of causing another person to commit a crime of aiding and abetting a criminal suspect by making another person make a false confession on his/her behalf constitutes a crime of aiding and abetting a criminal defendant (see Supreme Court Decision 2005Do3707, Dec. 7, 2006). However, this refers to an act of causing another person to commit a criminal act on behalf of a police station to be investigated as a criminal suspect in lieu of a police station, and he/she is excluded from an act of aiding and abetting a criminal suspect in legal order. This does not include the act of aiding and abetting a criminal suspect or his/her accomplice who is closely related to concealment of his/her criminal act (i.e., the method of denying a criminal act) differently from the fact. Meanwhile, under Article 12(2) of the Constitution of the Republic of Korea, all citizens are not forced to make a statement unfavorable to him/her, and the act of making a false statement on his/her criminal case by a defendant is not subject to punishment for his/her own act of aiding and abetting a criminal defendant (see Supreme Court Decision 2004Do157, Jan. 27, 2007, 2004).

(2) Determination on the instant case

Defendant 2, Defendant 3, and Defendant 1 are co-principal offenders of the crime of evading compulsory execution of the instant case (defendant 2 and Defendant 3 were already indicted and sentenced to one year imprisonment, one year imprisonment, and two years of suspended execution as of August 13, 2015, and two years of suspended execution became final and conclusive, and Defendant 1 was indicted at once).

Of the facts charged above, Defendant 2 and Defendant 3’s aiding and abetting the criminal escape, and Defendant 1’s criminal escape on or around September 2013, the Defendants committed the crime of aiding and abetting the criminal escape and the crime of aiding and abetting the criminal escape in order to be exempted from compulsory execution. As such, the Defendants committed the crime of aiding and abetting the criminal escape and the crime of aiding and abetting the criminal escape. This is merely an act of aiding and abetting a joint principal offender, which is closely related to the concealment of their criminal acts, to the effect that the transfer of the call text is not false, and it is difficult to view it as an abuse of the right of defense. In addition, it shall be deemed that there is no possibility of expectation of lawful act like one’s own escape. Accordingly, the judgment below convicting this part of the facts charged is erroneous in the misapprehension of legal principles on the crime of aiding and abetting the criminal escape and the crime of aiding and abetting the criminal escape.

(b) Next, as to Defendant 2 and Defendant 3’s accusation against Defendant 2 and Defendant 3, the Health Team, Defendant 2, and Defendant 3’s criminal escape from compulsory execution on October 2013, which were accused of a crime of evasion of compulsory execution by Nonindicted 1, thereby committing the crime of aiding and abetting the criminal escape and the crime of aiding and abetting the criminal escape. As seen earlier, it is difficult to view that the crime of aiding and abetting the criminal escape and the crime of aiding and abetting the criminal escape were abused, and it is also deemed that there is no possibility of expectation of lawful act. Accordingly, the judgment below convicting this part of the charges is erroneous in the misapprehension of legal principles as to the crime of aiding and abetting the criminal escape and the crime of aiding and abetting the criminal escape.

3. Conclusion

Therefore, the judgment of the court below is reversed in its entirety and it is decided as follows, without examining the grounds for the above ex officio reversal, and without examining the argument of unfair sentencing by Defendants 1, 2, and the prosecutor.

On June 4, 2015, Defendant 2 was sentenced to one year by the Busan District Court for the evasion of compulsory execution, and the above judgment became final and conclusive on August 13, 2015.

1. Defendant 2

Defendant 2: (a) operated the “○ Call” in Busan ( Address 1 omitted); (b) transferred the instant call text to Nonindicted 1 on January 19, 2010; and (c) opened and operated the “△△ Headquarters” (hereinafter “instant call text”) on December 7, 201, around December 7, 201, Defendant 2 changed the instant call text from Nonindicted 1 to Defendant 3 on December 22, 201.

Accordingly, on January 20, 2012, Nonindicted Party 1 filed a lawsuit against the Defendant for prohibition of business, etc. (the Busan District Court 2012Gahap7161) with the Busan District Court. On December 13, 2012, Nonindicted Party 1 was sentenced to the judgment to the effect that “Defendant 2 shall not continue to engage in the call text business in the building on the ground of the Busan District Court’s ( Address 2 omitted) or not lease, transfer, or otherwise dispose of the said business until January 18, 2012.”

Around that time, the Defendant had the intent to register the instant call text in the name of another person in order to avoid the possibility of being subject to compulsory execution by the said civil procedure, etc. from Nonindicted Party 1.

On May 2013, the Defendant explained the aforementioned circumstances to Defendant 1, and requested Defendant 1 to “the name of the instant call text changed to Defendant 1’s name,” and Defendant 1 consented thereto.

A. As to the real estate lease agreement dated May 24, 2013

Around May 2013, the Defendant stated the location column of the instant real estate lease agreement in the column for the location of the real estate lease agreement, as the “Seoul Metropolitan City ideology-gu ( Address 2 omitted), area 49.5 square meters, deposit KRW 50,000 (50,000), KRW 30,000,000, KRW 500, and KRW 300,000, KRW 300,000, and KRW 24,500, and KRW 24,000,” and written in the column for the lessor, as the “Sesan-dong-gu ( Address 3 omitted),” and written in the column for the lessee’s name “Seongsan-gu ( Address 4 omitted), (resident registration number 2 omitted), and Defendant 1”, and forged Chapter 1 in the name of Nonindicted Party 2, which is a private document on the rights and obligations, with the seal affixed by Nonindicted Party 2 prior to his name.

On June 1, 2013, the Defendant issued a forged real estate lease contract as if it was a document that was duly formed, to a public official who was aware of the forgery in the North Asia-gu, Busan-do.

B. Regarding the real estate lease agreement dated January 6, 2015

On January 2015, the Defendant stated the location column of the instant real estate lease agreement in the column for the location of the real estate lease agreement, as follows: (a) the Defendant stated “Seongdong-gu Busan Metropolitan City ( Address 2 omitted); (b) the size of 49.5 square meters; (c) the deposit KRW 50,000,000 ( KRW 50,000); (d) the rent KRW 30,000,000; and (e) January 6, 2015 through January 6, 2017; (b) the lessor column as “Sesan-dong-gu ( Address 3 omitted); and (c) the lessee column as “Sesan-gu (resident registration number 5 omitted); and (d) Nonindicted Party 3 forged a Chapter 1 in the name of Nonindicted Party 2, which is a private document concerning the rights and obligations, with the seal affixed by Nonindicted Party 2 in his name.

On January 6, 2015, the Defendant issued a forged real estate lease contract as if it were a document that was duly formed, to a public official under his name, who was aware of the forgery at the above North Northern District Tax Office.

2. Defendant 1 (in the case of a change in indictment at the trial as follows, but this is only an unclear part, and it is the same as the crime at the time of original adjudication).

On May 2013, the Defendant heard the above circumstances from Defendant 2 and Defendant 3, and consented thereto upon the request of Defendant 2 and Defendant 3 to “the change the name of this case to the name of the Defendant.”

After that, around May 2013, the Defendant, along with Defendant 2 and Defendant 3, prepared a false real estate sales contract with the purport that “the Defendant acquires the instant call text from Defendant 3 in the cost of KRW 150 million.” On June 1, 2013, the Defendant submitted a forged real estate lease contract, etc. under the name of Nonindicted 2, which was forged, and changed the name of the business operator of the said call text into the name of the Defendant.

However, the actual operator of the call text of this case is Defendant 2, and the defendant did not have acquired the call text of this case from Defendant 2 or Defendant 3.

Accordingly, with a view to evading compulsory execution in collusion with Defendant 2 and Defendant 3, Nonindicted 1, the creditor, by concealing or falsely transferring the ownership of the instant call text, by making it unclear the ownership relationship, such as changing the name of the Defendant in the name of the Defendant.

The summary of the evidence recognized by this court is as follows, except for the addition of the “certificate of confirmation of a criminal trial on October 19, 2015,” and thus, it is identical to the corresponding column of the judgment of the court below, thereby citing it as it is by Article 369 of the Criminal Procedure Act.

1. Relevant Article of the Act and the choice of punishment for the crime;

A. Defendant 1: Articles 327 and 30 of the Criminal Act; the choice of imprisonment

B. Defendant 2: Article 231 of the Criminal Act (the point of aiding and abetting Private Document), Articles 234 and 231 of the Criminal Act (the point of exercising a falsified Private Document), and each choice of imprisonment.

1. Handling concurrent crimes;

Defendant 2: The latter part of Article 37 and Article 39(1) of the Criminal Act

1. Aggravation for concurrent crimes;

Defendant 2: former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act

1. Suspension of execution;

Defendant 1: Article 62(1) of the Criminal Act (Taking into account the first offender, the developments leading up to the participation in the instant case, and his depth)

Of the facts charged in the instant case, the summary of the facts charged as to each criminal escape teacher and criminal escape is identical to that of paragraph (1) of Article 2, and since it constitutes a case that does not constitute a crime as stated in paragraph (2) of Article 2, each of the judgment of innocence is rendered pursuant to the former part of Article 325 of the Criminal Procedure Act, and the summary of each of the judgment of innocence is to be disclosed in accordance with Article 58(2) of the Criminal Act.

Judges Sung-jin (Presiding Judge) Kim Tae-jin