[1] Criteria for distinguishing between the inclusive crime and the substantive concurrent crime

[2] The case reversing the judgment of the court below that res judicata effect of the summary order which became final and conclusive extends to the second criminal act in a case where: (a) the crime was suspended for one month or more after the suspension of prosecution was committed by the police after the first criminal act that manufactured the pseudo petroleum product which is a hazardous material; and (b) the first criminal act was final and conclusive

[1] In a case where multiple acts falling under the name of the same crime or continuous acts are continuously conducted for a certain period under the single and continuous criminal intent and where the legal benefits from such damage are the same, each of these acts shall be punished by a single comprehensive crime. However, where the unity, continuity, or the method and location of the crime are not recognized, each of the crimes constitutes substantive concurrent crimes.

[2] The case reversing the judgment of the court below that the first and second criminal acts constitute a single comprehensive crime and the res judicata effect of the final summary order extends to the second criminal acts, on the ground that the first and second criminal acts do not recognize time and place accessibility and the criminal intent is renewed, in case where a summary order was finalized against the first criminal acts, in view of the fact that the method of committing the first and second criminal acts and the place of committing the second criminal acts are not the same.

[1] Article 37 of the Criminal Act / [2] Article 37 of the Criminal Act

[1] Supreme Court Decision 96Do1181 delivered on July 12, 1996 (Gong1996Ha, 2572) Supreme Court Decision 2005Do278 delivered on May 13, 2005 (Gong2005Ha, 1757) Decided September 30, 2005 / [2] Supreme Court Decision 2006Do1252 Delivered on May 11, 2006

Defendant

Prosecutor

Daejeon District Court Decision 2006No427 Decided April 21, 2006

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

The grounds of appeal are examined.

1. The lower court: (a) deemed that the Defendant conspired with Nonindicted Party 1 to commit an act of manufacturing or selling similar petroleum products, (b) deemed that the Defendant was not in compliance with the above-mentioned Act; (c) deemed that the Defendant’s act of storing or selling the same pseudo petroleum products by using the same 6-day storage method as the above 0-day storage method; and (d) deemed that the Defendant’s act of storing or selling the same 6-day storage method and 0-day storage method of identical petroleum products by using the same 0-day storage method as the above 6-day storage method; and (e) deemed that the Defendant’s act of storing or selling the same 6-day storage method and 0-day storage method of identical petroleum products by using the same 0-day storage method as the above 0-day storage method; and (e) deemed that the Defendant’s act of storing or selling the same 60-day storage method and 0-day storage method of identical petroleum products by using the same 60-day storage method as above was not manufactured.

2. However, the above decision of the court below is hard to accept.

A. Where a number of acts falling under the name of the same crime or continuous acts are continuously conducted for a certain period under the single and continuous criminal intent and the legal benefits from such damage are the same, each of these acts shall be punished by a single comprehensive crime. However, where the unity, continuity, or the method and place of the crime are not recognized, each crime constitutes substantive concurrent crimes (see Supreme Court Decision 2005Do4051, Sept. 30, 2005, etc.).

B. According to the records, the defendant, around October 6, 2005, was controlled by the police as the crime of the above summary order (hereinafter "the first crime"), and was detained by the non-indicted who was the accomplice until he committed the crime of this case in the order of November 2005 (hereinafter "the crime of this case"). At the time of the first crime, the non-indicted was the lead of the crime by manufacturing similar gasoline at the time of the first crime, and the defendant took the lead of the crime of this case by driving the cromatic vehicle used in the crime of this case, while the non-indicted was not in the relation of the crime of this case, it is difficult to see that the method of the crime of this case was the same, and it is difficult to see that the first crime of this case was identical to that of the defendant by lending the cromatic vehicle used in the crime of this case, and it is difficult to see that the first crime of this case was in the relation of the crime of this case with the similar crime of this case under the summary order of this case, which it was manufactured within the 94.

C. Nevertheless, since the criminal facts of the established summary order are related to the facts charged in this case, res judicata extends to the facts charged in this case, and the decision of the court below that acquitted the defendant is erroneous in the misapprehension of facts against the rules of evidence or in the misapprehension of legal principles as to a single comprehensive crime, which affected the conclusion of the judgment. The prosecutor's ground of appeal pointing this out has merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Hwang-sik (Presiding Justice)