Whether gambling can be absorptiond into the crime of extortion in the event that gambling becomes the means for the crime of extortion (negative)

Articles 37, 246(1), and 350(1) of the Criminal Act

Defendant

Defendant and Prosecutor

Attorneys Kim Ho-ho et al.

Incheon District Court Decision 2013No2510 decided December 20, 2013

The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

The argument that the judgment of the court below contains an error of law in misconception of facts as to a violation of the Punishment of Violences, etc. Act (joint conflict) shall not be a legitimate ground for appeal, as alleged in the ground of appeal by the defendant, or by the court below's ex officio.

In addition, the argument that the judgment of the court below contains an error of law in the misapprehension of the legal principles as to gambling, is not a legitimate ground for appeal as it contests the part which the court below acquitted.

In addition, the argument that the judgment of the court below erred by exceeding the limit of the discretionary authority for sentencing constitutes an allegation of unfair sentencing. However, according to Article 383 subparag. 4 of the Criminal Procedure Act, only in the case where death penalty, life imprisonment, or imprisonment with or without labor for not less than ten years has been imposed, an appeal on the ground of unfair sentencing is allowed. As such, the argument that the amount of the punishment is unfair cannot be a legitimate

2. As to the Prosecutor’s ground of appeal

According to the reasoning of the lower judgment, the lower court acquitted the Defendant on the charge of gambling among the facts charged in the instant case, on the grounds as stated in its reasoning, on the grounds that the Defendant’s gambling act is merely a means role for committing a crime of co-public conflict, and thus, acquitted the Defendant.

However, the crime of extortion and gambling are different from the elements of the crime of extortion, and the crime of gambling does not involve gambling in general and in general at the establishment of the crime of extortion, and it cannot be said that gambling is minor as much as it is not considered separately compared to the crime of extortion. Thus, the act of gambling becomes the means of the crime of extortion, and it cannot be said that it does not constitute a separate crime.

Nevertheless, the lower court rendered a judgment not guilty on the ground that the crime of gambling was not established separately from the crime of violation of the Punishment of Violences, etc. Act (joint conflict). In so doing, the lower court erred by misapprehending the legal doctrine on the number of crimes of gambling and the crime of violation of the Punishment of Violences, etc. Act (joint conflict), thereby adversely affecting the conclusion of the judgment. The Prosecutor’s

3. Conclusion

Therefore, the part of the judgment of the court below regarding the crime of gambling should be reversed, and the appeal against the guilty portion of the defendant is without merit. However, since the crime that the court below found the defendant guilty and the crime that found the defendant not guilty is concurrent crimes under the former part of Article 37 of the Criminal Act, the whole judgment of the court below is reversed and the case is remanded to the court below for further proceedings consistent with this Opinion by the assent of all

Justices Yang Chang-soo (Presiding Justice)