Defendant 1 and one other

Defendants

Freeboard milk

Law Firm Han-gu General Law Office, Attorneys Jeon Jong-Un et al.

Jeonju District Court Decision 2007Ma401 Decided August 20, 2007

The judgment of the court below is reversed.

Defendant 1 shall be punished by imprisonment for eight months and by imprisonment for four 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.

Probation shall be given to Defendant 1 and community service for 120 hours shall be ordered.

One board of entertainment (No. 235 of pressure No. 235 of the 2007 Military Prosecutors' Office of the Jeonju District Prosecutors' Office) seized from Defendant 1 and 941 of the Korea-China Cultural Products' Right (No. 1 of pressure No. 148 of the 2007 Military Prosecutors' Office of the Jeonju District Prosecutors' Office) shall be confiscated from Defendant 2, respectively.

Of the facts charged in the instant case, the charge of aiding and abetting Defendant 1 to escape, and the charge of aiding and abetting Defendant 2, shall be acquitted.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles (the defendant's aiding and abetting the criminal defendant to commit the crime)

Defendant 2 is a registered titleholder of “(trade name omitted) entertainment room” as indicated in the facts charged (hereinafter “instant entertainment room”) and operated the instant entertainment room in collaboration with Defendant 1, such as employing Nonindicted 1 and providing wages to the said entertainment room, and managing Defendant 1 and the amusement room in shift with Defendant 1; and Defendant 1 stated himself as the actual owner of the said entertainment room; Defendant 1 did not have the purpose or intent of criminal escape; and Defendant 2 was indicted as an accomplice of violation of the Act on Special Cases Concerning the Regulation and Punishment of Speculative Acts, etc. and the Promotion of the Game Industry due to the operation of the instant entertainment room; even if Defendant 2 had concealed Defendant 1’s crime by making a false statement that he operated the said entertainment room, such false statement alone does not constitute a crime of escape.

Nevertheless, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine that found the Defendants guilty on the part of the charges of this case as to aiding and abetting the Defendants from committing an offense.

B. Unreasonable sentencing

The sentencing of the lower court against the Defendants (Defendant 1: 2 years of suspended sentence for one year of imprisonment; 200 hours of community service; and 2: 6 months of imprisonment) is too unreasonable.

2. Judgment on the assertion of mistake of facts

A. Summary of the facts charged and the judgment of the court below

1) Summary of the facts charged as to Defendant 1’s escape of criminals and escape of criminals against Defendant 2

A) On October 2006, Defendant 1 loaned the name of the proprietor of the instant entertainment room to Defendant 2 in the name of the proprietor of the instant entertainment room, Defendant 1 asked Defendant 2 to divide profits if the said entertainment room is operated well, and operated the said entertainment room under Defendant 2’s name, and on April 23:30 of the same year, around 18:30 of the same month, around 25:30 of the same year, and on December 18:30 of the same year, on the charge of violating the Sound Records, Video Products, and Game Products Act, Defendant 2 was subject to an investigation as the owner of the instant entertainment, and Defendant 2 consented to the operation of the said entertainment room to the effect that Defendant 2, who committed the crime of violation of the Act on the Sound Records, Video Products, and Game Products, had each of the police officers in charge of investigation into the said entertainment room and made a statement on January 14 of the same year, 23, and January 15, 2007.

B) Defendant 2 borrowed the name of the distributor of the instant entertainment room from Defendant 1 to divide profits in the event that the said entertainment room is well operated. Defendant 2, instead of Defendant 1, who is the actual owner of the instant entertainment room, had Defendant 2 control over the said entertainment room, had Defendant 2 undergo a false investigation. On October 14, 2006, Defendant 1 asked Defendant 1 to request the said entertainment room from the above entertainment room to receive the same investigation and consented, and on January 15, 2007, each police officer in charge made a statement to the effect that Defendant 2 committed a crime, such as violation of the Act on the Sound Records, Video Products and Game Products, etc., as the actual business of the said entertainment room.

2) The judgment of the court below

The court below found the defendant guilty of the above facts charged by taking full account of the presented evidence.

B. Judgment of the court below

1) Criteria for determining the crime of escape of an offender

In the crime of attempted escape of a criminal under Article 151 of the Criminal Act, the term "the act of attempted escape" refers to any act other than concealment which makes it difficult or impossible to act as a criminal justice such as investigation, trial, execution of sentence, etc., and there is no restriction on the means and method thereof. In addition, the crime is not required as a dangerous crime, but it is reasonable to interpret that it is limited to the act of making it difficult to detect and arrest an investigation agency to the extent that it is unreceptable by the act of concealment stipulated in the same Article, i.e., the act of directly making the criminal escape or directly facilitating the escape of the criminal, and it does not include the case where the criminal is indirectly informed and able to escape (see Supreme Court Decision 2002Do5374, Feb. 14, 2003, etc.).

In addition, in investigating a criminal case, an investigation agency has the right and duty to determine the suspect regardless of the statement of the suspect or witness, and collect and investigate objective evidence to acknowledge the suspected fact. Thus, even if a witness who is aware of the fact at an investigation agency and made a false statement at the investigation agency, even though he/she was not aware of the fact, it does not constitute a crime to escape an offender unless it makes it difficult or impossible to detect or arrest the criminal by actively entering the investigation agency (see, e.g., Supreme Court Decision 83Do3288, Apr. 10, 1984). This legal principle applies to cases where a suspect makes statements about his/her accomplice (see, e.g., Supreme Court Decision 83Do3288, Apr. 10, 1984).

(ii) the facts of recognition

In full view of the evidence duly adopted and examined by the court below and the trial court, the following facts are recognized:

A) Defendant 1 received the instant entertainment room from Nonindicted 2 on October 2006, but bears a lot of obligations at the time, and Defendant 1 was granted permission for the general game room business by designating the registered name as Defendant 2 on the second day of the same month.

B) Defendant 2 received some of the profits of the instant amusement room from Defendant 1, and managed it by Defendant 1, alternately with Defendant 1.

C) On October 4, 2006, October 25, 2006, and December 10, 2006, the entertainment room of this case was controlled by the police on three occasions more than three occasions. On October 25, 2006, Defendant 1 was contacted by Nonindicted 1 and was in the entertainment room. On the same day, Defendant 1 drafted a letter of view (the second page of the investigation record) indicating that he was under control while operating the entertainment room of this case.

D) After Defendant 2 reached an agreement with Defendant 1 to make a statement with the investigative agency as the actual owner of the registered title holder, Defendant 2 stated that Defendant 2 was not only the registered owner but also the actual owner of the instant amusement room in the police investigation conducted on November 14, 2006, November 23, 2006, and January 15, 2007. After that, Defendant 2 reversed the statement that Defendant 1 was Defendant 1 was actually engaged in the actual business on February 15, 2007, and Defendant 1 was the actual owner of the instant amusement room on February 20, 207, and that Defendant 2 was the actual owner of the instant amusement room on February 20, 207.

3) Determination on whether a criminal committed an attempted crime was committed

A) According to the above facts, the entertainment room in this case was operated mainly by Defendant 1, but it was operated jointly with Defendant 1, not by lending only the registered name (the prosecutor himself was indicted by Defendant 1 and Defendant 2 as well as Defendant 2's accomplice who committed a speculative act, etc. in collusion with Defendant 1 and Defendant 2). Defendant 2's statement in the police station, which is the actual owner of the entertainment room in this case, cannot be seen as completely false; ② Defendant 1 was contacted by Nonindicted 1 at the time of the police control, and Defendant 1 was working at the scene at the scene, and on the same day, Defendant 1 was under contact with Defendant 1 at the time of the police control, and there were many other circumstances to doubt that Defendant 1 was operating the entertainment room in this case, and thus, Defendant 2 cannot be seen as having determined the aforementioned false statement of the suspect's statement and made it difficult to find objective and objective evidence to acknowledge the suspect's right and duty to investigate or investigate it, regardless of the suspect's statement.

B) Furthermore, in a case where a person, other than an accomplice, makes another person make a false confession on his/her behalf, the crime of aiding and abetting the criminal is established (see Supreme Court Decision 2000Do20, Mar. 24, 2000). However, in a case where a “official” makes a false confession that he/she is a single criminal for another accomplice, it is difficult to establish the crime of aiding and abetting the criminal.

First, in the case of a criminal who commits special larceny, to clarify the existence of an accomplice is likely to be aggravated from simple larceny to special larceny (or to be aggravated). In such a situation, it is obvious that it would be against the principle of prohibition of self-donation as stipulated in Article 12(2) of the Constitution to punish a person who does not have an accomplice by deeming him/her as an act of attempted larceny, thereby forcing him/her to be subject to more severe punishment by actively clarifying the existence of the accomplice.

Likewise, as in the instant case, even if the facts do not change depending on the existence of an accomplice, such liability may increase or decrease depending on the existence of the accomplice, the attitude of the conspiracy, and from the standpoint of the suspect, if it is difficult to determine whether the accomplice exists or not, then there may be sufficient cases where the suspect conceals and makes a false statement about the accomplice for the purpose of defending himself/herself depending on the circumstances. Nevertheless, if such false statement is concluded to be conducted collectively for the purpose of actively escapeing the criminal, and is punished as a crime of attempted to escape the criminal solely on the ground that it falls under an objective aggravated element or there is no possibility of increase in liability, it shall be deemed that such false statement is not permissible in light of the guarantee of the suspect’s right to defense and the principle of prohibition of self-contribution under the Constitution.

4) Sub-committee

Therefore, even if Defendant 2 made a false statement that Defendant 2 operated independently as the actual owner of the entertainment room of this case, and thereby concealed Defendant 1’s existence, the evidence submitted by the prosecutor alone in light of the above circumstances is insufficient to acknowledge that Defendant 2’s act constitutes the crime of capital flight, and there is no other evidence to acknowledge this. Thus, the facts charged in this part of the facts charged should be pronounced not guilty on the ground that there is no evidence to prove the facts charged. However, the court below erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment. Thus, Defendant’s assertion of mistake of facts is with merit

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act without examining the Defendants’ assertion of unfair sentencing, on the grounds that the Defendants’ appeal is well-grounded, and the following is again decided after pleading.

As stated in each corresponding column of the judgment of the court below, it is accepted in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Defendants: Article 30(1)1 of the Act on Special Cases concerning Regulation and Punishment of Speculative Acts, Etc.; Article 30 of the Criminal Act (a business of engaging in speculative acts by using an electronic amusement device); Articles 44(1)1 and 28 subparag. 2 of the former Promotion of the Game Industry Act (amended by Act No. 8247 of Jan. 19, 2007; hereinafter the same shall apply); Article 30 of the Criminal Act (a business of causing the use of game products to engage in speculative acts); Articles 45 subparag. 3 and 28 subparag. 3 of the former Promotion of the Game Industry Act; Article 30 of the Criminal Act (a business of encouraging speculation by providing free gifts, etc. other than public notice); Articles 44(1)2, 32(1)1, and 21(1) of the former Promotion of the Game Industry Act; Article 30 of the Criminal Act (a business of providing game products for the use of game products)

1. Commercial competition;

Defendants: Articles 40 and 50 of the Criminal Act (Violation of the Act on Special Cases concerning Regulation and Punishment of Speculative Acts, etc. and Punishment, and Punishment of Punishment of Crimes under the Act on Promotion of the Game Industry due to commission of speculative acts by using game products, and Punishment of Punishment of Crimes under the Act on Special Cases concerning Regulation and Punishment of Speculative Acts, Etc.

1. Selection of punishment;

Each Imprisonment Selection

1. Aggravation for concurrent crimes;

Defendants: the former part of Article 37, Article 38 (1) 2, and Article 50 (Aggravation of Punishment and Punishment under Article 30 of the Criminal Act)

1. Suspension of execution;

Defendant 1: Article 62(1) of the Criminal Act (Taking into account the following reasons for sentencing)

1. Confiscation;

Defendants: Article 48(1)1 of the Criminal Act

1. Probation and community service order;

Defendant 1: Article 62-2(1) of the Criminal Act

1. Defendant 1

The above defendant is sentenced to the same punishment as the order, taking into account the following factors: (a) the defendant was punished for a violation of the Automobile Management Act on one occasion; (b) there is no particular criminal history other than punishment; (c) the period of operation of the entertainment room in this case is not longer than two months; and (d) business profits are deemed not much; and (e) the above defendant's age, sex, and environment are various sentencing conditions

2. Defendant 2

The above defendant committed the crime of this case during the suspended execution period, even though he was sentenced to a suspended sentence of six months on February 16, 2006 due to driving under the influence of alcohol or without a license, it is inevitable to punish him in that he committed the crime of this case.

However, the period of operation of the entertainment room of this case is not longer than two months, and it seems that business profits are not much high, and Defendant 1 appears to have committed the crime of this case. Defendant 2 appears to have committed the crime of this case, and Defendant 2 is relatively minor, and other various sentencing conditions indicated in the records, such as the age, character, and environment of the above Defendant, are considered and sentenced to the same punishment as the order.

Of the facts charged in the instant case, the summary of the facts charged as to Defendant 1’s attempted criminal escape and attempted criminal escape against Defendant 2 is as stated in the above 2-A. This constitutes a case where there is no proof of a crime as seen in Article 2-2(b) of the Criminal Procedure Act, and thus, the Defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act.

Justices Seo Jong-Gyeong (Presiding Justice)