Punishment for a crime of departing from the Republic of Korea by referring to the name of another person and being issued a passport;

An act of obtaining a passport under the name of another person by referring to the name of another person falls under Article 13 (2) 1 of the Passport Act and an act of aiding and abetting and abetting the departure from the Republic of Korea or the departure from the Republic of Korea by taking the procedure by using a passport illegally issued as above constitutes Article 13 (1) of the Passport Act, Article 3 (1) or 4 (1) of the Stows Control Act, and a crime of violating the Passport Act and the Stows Control Act are in substantive concurrent relations.

Articles 13(2)1, 13(1), 3(1), and 4(1) of the Passport Act, Article 37 of the Criminal Act

Defendant 1 and one other

Defendants

Attorney Jeon Soo-hwan, Kim Byung-hwan

Seoul Criminal Court Decision 84No6716,85No864 delivered on March 22, 1985

Defendant 2’s appeal is dismissed.

The part concerning Defendant 1 among the judgment below is reversed, and that part of the case is remanded to the Panel Division of the Seoul Criminal Court.

1. Defendant 2’s counsel’s grounds of appeal are examined.

Point 1

According to the evidence of the first instance judgment maintained by the court below, it is sufficiently recognized that the defendant 2, in collusion with the non-indicted 1 and the non-indicted 1, who did not have a valid passport as stated in the first instance judgment, was accompanied by a false passport issued in the name of red sponsor at the time of departure from the port of the Busan Kimhae Airport with a false passport, and that the non-indicted 1 assisted the non-indicted 2's smuggling by completing the purchase of airline tickets and the departure procedures, etc. within the airport, and there is no violation of the rules of evidence or any violation of the rules of evidence as argued in

Point 2

An act of obtaining a passport under the name of another person by referring to the name of another person falls under Article 13 (2) 1 of the Passport Act and an act of aiding and abetting and abetting the departure from the Republic of Korea or the departure from the Republic of Korea by taking the procedure by using a passport illegally issued, constitutes Article 13 (1), Article 3 (1) or 4 (1) or (2) of the Passport Control Act, and the above two crimes, i.e., the relation between the violation of the Passport Control Act and the violation of the Stows Control Act, should be deemed as a substantive concurrent relation.

The issue is that illegal departure acts merely constitute a violation of the Passport Act in addition to the violation of the Passport Act, but they do not pass through an unfounded independent opinion.

In addition, in order to constitute a violation of the Stows Control Act, illegal aiding and abetting directly related to illegal departure in addition to the illegal issuance of a passport, so the defendant's accompanying Nonindicted 2, who is a smuggling, cannot be deemed to be an illegal aiding and abetting. However, as seen earlier, the court below held that Defendant 2, as well as accompanying Defendant 2 to the public port, aiding and abetting Nonindicted 2's smuggling by purchasing Nonindicted 2's airline tickets and preparing a conspiracy to depart from the Republic of Korea, and thus, there is no error in the misapprehension of legal principles such as the theory of lawsuit, etc.

2. Defendant 1’s ground of appeal is examined.

(1) Violation of the Passport Act

According to the evidence cited by the court below, it is sufficiently recognized that Defendant 1 conspired with Defendant 2 in collusion with Defendant 2 to obtain a passport in the name of red scarcity with Non-Indicted 2’s photograph by unlawful means such as the time of original adjudication, and there is no error in law in the course of evidence cooking or the judgment that found Defendant 2 as a co-principal. Thus, the court below's judgment that found Defendant 2 as a co-principal in violation of the Passport Act without any evidence and there is no error in law by misunderstanding the legal principles of co-principal.

(2) Violation of the Stows Control Act

The court below acknowledged the fact that Defendant 1 conspired with Defendant 2 and Defendant 1 of public prosecution, who illegally received a passport on May 31, 1984 in the name of red sponsor without a justifiable passport, and thereby making the air route to an area outside the Republic of Korea, Defendant 2 accompanied by Nonindicted 2 and Kimhae, and Nonindicted 1 got off the air ticket purchase and the departure procedure, etc. in the airport, thereby aiding and abetting the same person to commit the smuggling, and maintained the judgment of the court of first instance, which was sentenced to the punishment of Defendant 1 as the crime of smuggling as provided by Article 4(2) of the Stows Control Act.

In short, the judgment of the court below recognized the fact that Defendant 1 conspiredd to commit an act of aiding and abetting and abetting the secret of the person by accompanying Defendant 2 and Nonindicted 1 to the Kimhae Airport, thereby completing the purchase of airline tickets and the departure procedure, etc., and it was the purport that Defendant 1 was punished as a conspiracy for the act of aiding and abetting and abetting the person’s secret.

However, even after examining the record, there is no evidence to acknowledge that Defendant 1 conspiredd with Defendant 2 and Nonindicted 1 in advance with regard to the above recognition, and rather, even according to Defendant 2’s prosecutor’s office, the first instance court, and the court of original trial, even if based on the statements in the court of original trial, Nonindicted 2’s accompanying Nonindicted 2 to the said public port by having him leave the country from the Kimhae Airport, and the purchase of airline tickets and the suspension of departure is one of the parties between Defendant 2 and Nonindicted 1, and there is no mentioning that there was a communication with Defendant 1 with regard to this day.

However, according to the prosecutor's suspect interrogation protocol (V) as to the prosecutor's Kim Young-man, Kim Young-man stated that he paid 35,000,000 won to Defendant 2 in return, including both Nonindicted 2's issuance of a passport and departure from the country. Defendant 1 received double 3,50,000 won from Defendant 2, but it is difficult to conclude that Defendant 1, Defendant 2 and Nonindicted 1 received the above amount of money in advance.

In the end, the judgment of the court below as to Defendant 1's violation of the Act on the Control of Confidentiality is erroneous in the misapprehension of the rules of evidence, which affected the conclusion of the judgment, and it is reasonable to discuss this point.

3. Therefore, Defendant 2’s appeal is dismissed, and the part concerning Defendant 1 among the judgment below is reversed, and this part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Il-young (Presiding Justice)