2018No506 A. Violation of the Punishment of Violences, etc. Act (Organization and activity of an organization, etc.)

(b) Violation of the Punishment of Violences, etc. Act;

(c) An special injury;

(d) Special serious injury;

(e) Special assault;

(f) Injury;

(g) Violation of the Punishment of Violences, etc. Act;

(h) Damage to property;

(i) Obstruction;

1.(a)(c)(d)(f)(g). B

2.(c)(d)(i) . C

3.(a)(c)(d)(e).D

4.(a)(c)(d)(e) E;

5.(a)(c) F

6.(a)(c)(d)(e) G

7.(a)(c) d. E. H

8.(a)(c) I

Defendants and Prosecutor (Objection to all of the Defendants)

Kim Jong-moron, Jho, Lee Jong-moron, Kim Ho-sung (Court) and Shin Jong-man (Court of Justice)

Law Firm E&S Partners (for Defendants B, C, D, E, and G)

Attorney Song-gil et al.

Attorney Choi Yong-il (the national election for defendant F)

Attorney Kim Jong-sung (Defendant H)

Attorney Choi Li-ju (the national election for defendant I)

Gwangju District Court Decision 2018Gohap248, 257 (Consolidation), 258 (Jail) Decided November 9, 2018

2) Judgment 287(Joint)

May 16, 2019

The parts of the judgment of the court below against Defendant B, C, D, E, and G shall be reversed.

The punishment against Defendant B shall be set forth as eight years of imprisonment, four years of imprisonment with prison labor for Defendant C, five and half years of imprisonment with prison labor for Defendant D, four years of imprisonment with prison labor for Defendant E, and two and half years of imprisonment with prison labor for Defendant G.

Defendant F, H, and I’s appeal and Prosecutor’s Defendant F, H, and I’s appeal are dismissed, respectively.

1. Summary of grounds for appeal;

A. Defendants

The sentence of the lower court against the Defendants is too unreasonable.

(b) Prosecutors;

The sentence of the lower court against the Defendants is too uneased and unreasonable.

2. Determination

(a) Defendant B, C, D, E, and G

The Defendants were members of the “JP” as a criminal organization. The Defendants used that their daily activities are physically and indirectly superior to the victims’ daily activities, and used collective violence to the victims AY, AZ, BB, and BA. The Defendants have undermined public authority by continuing violence without having been called out at the site, thereby impairing the public confidence in legal order or legitimate exercise of public authority. Due to the Defendants’ criminal acts, the victims AY suffered serious injury that would have permanently lost the eyesight of the right eye, and the victims AZ, BB also suffered injury.

Defendant B exercised violence led by the victim AY, plucking up and plucking down the snow of the victim AY, and tried to get AY by plucking more than 2kg. The method of the crime is very harsh. Defendant B, other than Defendant B, was injured by the victim BF, BK, and BH, and was damaged by the victim BH’s property. Defendant B committed each of the crimes of this case without being aware of the past six violent crimes (the crime of violation of the Punishment of Violences, etc. Act) even though he was sentenced to six times of punishment.

Defendant C, along with Defendant D, assaulted the Victim AZ, provided the formation of the instant violent crime. The Defendant committed the said crimes without being aware of the previous convictions (the crime of robbery and special robbery) on two occasions. In addition, the Defendant concealed the motor vehicle which was created by the right to collateral security during the period of repeated crime, thereby hindering the exercise of rights by the victim BM corporation.

Defendant D joined “Jm” as a criminal organization during a repeated crime period. Defendant D first assaulted the victim AZ and provided a group of violent crimes of this case. Defendant D, a female victim BB, caused the above victim’s injury by breaking up and photographing the face on the ground that the victim’s assaults occurred. Defendant D led the victim AY with Defendant B. Defendant D had five times of violent crimes, and one of them was sentenced to imprisonment, and committed each of the crimes of this case without being aware of (the crime of bodily injury).

Defendant E subscribed to a "Jm", a criminal organization, during the period of probation. Defendant E was a leading agent to disregard public authority by ordering a large number of police officers to continue violence without having been called out at the scene, and by ordering them to continue violence. Defendant E committed each of the instant crimes without being aware of the history of three times violent crimes.

Defendant G committed a non-discriminatory assault against the Victim G who was unable to resist at all due to the shock of assault by other Defendants. Defendant G committed each of the instant crimes without being aware of the record of five violent crimes.

Such circumstances are unfavorable to the Defendants. In addition to such unfavorable circumstances, the Defendants need to strictize in light of the social harm and danger of criminal acts related to criminal organizations.

However, the Defendants committed a crime in which they committed a mistake while they committed the crime, the Defendants agreed with the victim AY who suffered the most serious damage in this court, and the fact that Defendant D agreed with the victim BA in this court is favorable to the Defendants. In particular, the Defendants agreed with the victim AY and agreed with the victim BA is a sentencing factor to be newly considered by this court.

In full view of the above circumstances and other factors of sentencing as shown in the records and arguments of this case, including the defendants' age, character and conduct, environment, method of crime, and circumstances after crime, it is judged that the sentence imposed by the court below against the defendants is too unreasonable.

B. Defendant F, H, and I

In a case where there is no change in the sentencing conditions compared to the lower court, and the sentencing of the lower court is not beyond the reasonable scope of discretion, it is reasonable to respect such a case (see Supreme Court Decision 2015Do3260, Jul. 23, 2015).

In light of the fact that Defendant H and I have committed a crime in this court since the new sentencing data was not submitted by this court, there was no change in the sentencing conditions compared to the original judgment, and comprehensively taking account of the records and arguments, it cannot be said that the lower court’s punishment against the Defendants exceeded the reasonable scope of discretion, even if considering the fact that Defendant H and I have committed a crime in this court.

3. Conclusion

Since the appeal by Defendant B, C, D, E, and G is well-grounded, each part of the judgment of the court below against the above Defendants shall be reversed pursuant to Article 364(6) of the Criminal Procedure Act, and the appeal by Defendant F, H, I, and prosecutor as follows. Since the appeal by Defendant F, H, and I as well as the appeal by the prosecutor as to the above Defendants is without merit, all of them shall be dismissed pursuant to Article 364(4) of the Criminal Procedure Act. Since there is an obvious clerical error in the judgment of the court below, in accordance with Article 25(1) of the Rules on Criminal Procedure as to Defendant F, H, and I, the part corresponding to “the part to be “the following multiple judgments” shall be corrected as it is with such content.

[Judgment as to Defendant B, C, D, E, and G]

Criminal facts and summary of evidence

The summary of the facts constituting the crime recognized by this court and the evidence related thereto are as stated in each corresponding column of the judgment of the court below, except that the last sentence of Article 2.2.b. of the 2018 Gohap248 of the judgment of the court below (2018 Gohap258 of the judgment of the court below) (2018 Gohap248 of the judgment of the court below) is "the second sentence of the 2018 Gohap248 of the judgment of the court below (2.12 18 of the judgment of the court of the court below) is the same as stated in each corresponding column of the judgment of the court below.

【Supplementary Use】

As a result, Defendant B, C, D, E, G, and H showed multiple power, and Defendant B carried dangerous things, and caused the victim AY to suffer from an influence of elimal scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopics.

Application of Statutes

1. Article applicable to criminal facts;

(a) Defendant B: Article 4(1)3 of the Punishment of Violences, etc. Act (a point of joining a violence crime group), Articles 258-2(2), 258(2) of the Criminal Act (a) and Articles 258-2(1) and 258(1) of the Criminal Act (a point of special injury), Articles 261 and 260(1) of the Criminal Act (a point of special violence), Article 257(1) of the Criminal Act (a point of injury), Article 257(2)1 of the Punishment of Violences, etc. Act (a point of injury), Article 260(1) of the Criminal Act (a point of joint violence)

(b) Defendant C: Article 4(1)3 of the Punishment of Violences, etc. Act (a point of joining a violence crime group), Articles 258-2(2), 258(2) of the Criminal Act (a point of special serious injury), Articles 258-2(1), 258(1), and 258(1) of the Criminal Act (a point of special injury), Articles 261 and 260(1) of the Criminal Act (a point of special violence), Article 323 of the Criminal Act

(c) Defendant D and G: Article 4(1)3 of the Punishment of Violences, etc. Act (a point of joining a violent crime group), Articles 258-2(2) and 258(2) of the Criminal Act (a point of special serious injury), Articles 258-2(1) and 258(1) of the Criminal Act (a point of special injury), and Articles 261 and 260(1) of the Criminal Act (a point of special violence)

(d) Defendant E: Article 4(1)3 of the Punishment of Violences, etc. Act (a point of joining a violence crime group), Article 4(1)3 of the Punishment of Violences, etc. Act, Article 32(1) of the Criminal Act (a) of the same Act, Articles 258-2(2) and 258(2) of the Criminal Act, Articles 258-2(1) and 258(1) of the Criminal Act, Articles 261 and 260(1) of the Criminal Act (a) of the same Act;

1. Selection of punishment;

Each special assault crime, each bodily injury crime, violation of the Punishment of Violences, etc. Act (joint assault crime, each property damage crime, and obstruction of exercise of right) shall be punished by imprisonment with prison labor.

1. Aggravation for repeated crimes;

A. Defendant C: Article 35 of the Criminal Act (Interference with Exercise of Rights)

(b) Defendant D: Article 35 of the Criminal Act (within the limit of the proviso of Article 42 of the Criminal Act with respect to a crime of violation of the Punishment of Violences, etc. Act (Organization and Activity of Organizations, etc.

1. Aid and mitigation;

Defendant E: Articles 32(2) and 55(1)3 of the Criminal Act / [as to the crime of aiding and abetting in violation of the Punishment of Violences, etc. Act (Organization and Activity of Organizations, etc.)]

1. Aggravation for concurrent crimes;

With respect to all of the Defendants: the penalty provided for in the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (the term "violation of the Act on the Punishment of Violences, etc. (Organization and Activity of Organization, etc.) with the largest punishment shall be heavy: Provided, That with respect to Defendant D, the proviso of Article 42 of the Criminal Act shall

Justices Kim Tae-ho

Judges Yang Young-hee

Judges Hong Man-man