[1] In a case where the requirements under Article 165-2 subparag. 3 of the Criminal Procedure Act are met, whether a witness may be examined by means of installing shielding facilities, etc. to the prosecutor, defense counsel, and audience other than the defendant (affirmative), and whether the same applies to a case where Article 84-9 of the Rules on Criminal Procedure only provides for the shielding facilities between the defendant and the witness (affirmative)

[2] The meaning of "rupture" and "competence" under Article 4 (1) 1 and 2 of the Punishment of Violences, etc. Act

[1] According to Article 165-2 subparag. 3 of the Criminal Procedure Act, in a case where the court examines a witness who is deemed likely to substantially lose the peace of the mind at a psychological expense when the witness makes a statement in confrontation with the "defendant, etc." due to the nature of the crime, age of the witness, relationship with the defendant, and other circumstances, the court may install a shielding facility and examine the witness after hearing the opinion of the prosecutor, the defendant,

In the face-to-face statement by a witness, the other party who is likely to substantially lose the peace of the mind at the psychological expense is the defendant. However, according to the relation between the witness and the defendant, other persons such as the audience can also become the other party. Accordingly, Article 165-2 subparag. 3 of the Criminal Procedure Act provides that the subject of Article 165-2 subparag. 3 of the Criminal Procedure Act shall be referred to as "defendants, etc." Thus, the court may examine the witness by installing shielding facilities, etc. for not only the defendant but also the prosecutor, defense counsel, and the audience, etc., if the requirements of Article 165-2 subparag. 3 of the Criminal Procedure Act are met. This does not change because Article

However, the case where it is generally difficult for a witness to clearly lose peace in the mind due to psychological burden when the witness makes a statement face to his/her defense counsel, and where the witness is examined not only by installing a shielding facility, but also by his/her defense counsel, the defendant and his/her defense counsel cannot observe the appearance or attitude of the witness's testimony and the right to cross-examination may be restricted within such limit. Thus, the installation of a shielding facility for the defense counsel can be exceptionally allowed in special circumstances, such as the case where a witness who has already been under a confidential measure has already made a statement in person with his/her defense counsel, and a witness is deemed likely to be subject to retaliation pursuant to Article 7 of the Protection of Reporters, etc. of Specific Crimes Act, and a witness who has already made a statement in person with his/her personal information, etc. who has not been entered in the protocol, etc. is examined as a witness.

[2] Article 4(1)1 of the Punishment of Violences, etc. Act refers to a person who directs and leads the activities of an organization as a head of the head of a crime organization. As such, the term “the leader” does not necessarily require one person, and two or more leaders may act by sharing their roles. Thus, if a person who leads all organizational activities in the behind of the crime organization and takes part in the role of the leader of the organization in front, both persons may be recognized as the leader of the crime organization.

On the other hand, the term "comfort" in Article 4 (1) 2 of the Punishment of Violences Act refers to a person who directs and leads the terminal members under the direction of the leader.

[1] Article 165-2 subparag. 3 of the Criminal Procedure Act, Article 84-9 of the Regulation on Criminal Procedure, Article 7 of the Protection of Reporters, etc. of Specific Crimes / [2] Article 4(1)1 and 2 of the Punishment of Violences, etc. Act

[2] Supreme Court Decision 92Do682 delivered on June 23, 1992 (Gong1992, 2316) Supreme Court Decision 2005Do4205 Delivered on September 29, 2005

Defendant 1 and one other

Defendants and Prosecutor

Law Firm Barun and four others

Busan High Court Decision 2014No374 decided December 10, 2014

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Judgment on the Defendants’ grounds of appeal

A. As to the first ground for appeal

According to Article 165-2 subparagraph 3 of the Criminal Procedure Act, in a case where it is deemed reasonable to examine a witness who is deemed likely to substantially lose the peace of the mind at a psychological expense if a person makes a statement in confrontation with a "defendant, etc." due to the nature of the crime, age of the witness, relationship with the defendant and other circumstances, the court may install shielding facilities, etc. after hearing the opinions of the prosecutor, the criminal defendant

In the face-to-face statement of a witness, the other party who is likely to substantially lose the peace of the mind at the psychological expense is the defendant. However, according to the relation between the witness and the defendant, other persons, such as the audience, can also become the other party. Accordingly, Article 165-2 subparag. 3 of the Criminal Procedure Act also provides that the subject is "the defendant, etc." Thus, the court may examine the witness by means of installing shielding facilities, etc. for not only the defendant, but also the public prosecutor, defense counsel, and the audience, etc., if the requirements under Article 165-2 subparag. 3 of the Criminal Procedure Act are met. This does not change because Article 84-9 of the Regulation on Criminal Procedure provides only the shielding facilities between

However, it is generally difficult to present cases where the witness’s statement in face-to-face statement is likely to seriously lose the peace of the mind at a psychological burden. In cases where the witness examination is conducted not only by the defendant but also by installing a shielding facility to the defendant, the defendant and his/her defense counsel are unable to observe the appearance or attitude of the witness’s testimony and the right to cross-examination may be restricted within such limit. Thus, the installation of a shielding facility for the defense counsel can be exceptionally allowed in cases where there are special circumstances, such as special circumstances, such as where the witness, who has already been under a confidential measure regarding personal information, makes a statement in face-to-face statement by his/her defense counsel and causes serious psychological burden on the exposure of his/her identity.

The lower court determined that the first instance court’s measure to install a shielding facility between a witness and a defense counsel is lawful, on the ground that the installation of a shielding facility and the examination of a witness falls under the scope of the right to command a lawsuit if the requirements prescribed under Article 165-2 subparag. 3 of the Criminal Procedure Act are met. Thus, it is difficult for a person who made a false statement at the date of the first instance trial to testify in a peaceful state with a defense counsel at a psychological burden depending on the possibility of exposure

Examining the reasoning of the judgment below in light of the above legal principles and the records, although part of the court below's reasoning is not appropriate at the time of the explanation, the installation of shielding facilities to the defense counsel in this case was conducted for the purpose of preventing the witness's exposure to his status, for which measures for provisional use have been taken pursuant to Article 7 of the Protection of Specific Crime Informants, etc. Act, and thus constitutes a case where the installation of shielding facilities is permitted to the defense counsel. Accordingly, the judgment of the court below is just, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles on the interpretation of Article 165-2 of the Criminal Procedure Act

Furthermore, Defendant 1’s assertion in the grounds of appeal that the protocol of a person who has used multiple family name statements is inadmissible is not a legitimate ground of appeal as it is a new argument in the supplemental appellate brief not timely filed.

B. Regarding ground of appeal No. 2

The term “bullying” under Article 4(1)1 of the Punishment of Violences, etc. Act refers to a person who directs and leads the activities of an organization as the head of the head of the relevant criminal organization. The term “bullying” refers to one person, and the head of two or more persons may take part in the activities by sharing the roles of two or more persons. Thus, if a person who directs all organizational activities in the behind of the criminal organization and takes part in the roles of the members in the front of the group, both persons may be recognized as the leader of the criminal organization (see Supreme Court Decision 2005Do4205, Sept. 29, 2005).

On the other hand, the term "competence" as referred to in Article 4 (1) 2 of the Punishment of Violences Act refers to a person who directs and leads members of the horse group under the direction of leader (see Supreme Court Decision 92Do682 delivered on June 23, 1992, etc.).

In light of the above legal principles and records, the court below was just to recognize Defendant 1 as the leader of ○○mion and Defendant 2 as the executive member of ○○mion on the grounds as stated in its reasoning. In so doing, contrary to what is alleged in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending

C. Regarding ground of appeal No. 3

Examining the reasoning of the lower judgment in light of the evidence duly adopted by the lower court and the first instance court, the lower court, based on its stated reasoning, determined that the Defendants instructed and abetted the work of Nonindicted 1 and Nonindicted 2 with respect to the head of △△△△△△ branch, and that the Defendants guilty of this part of the facts charged is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors

2. Judgment on the grounds of appeal by the prosecutor

Even if a number of constituent members are involved, in a case where an instruction or order was not made by a systematic or collective decision-making for the purpose of maintaining and maintaining a crime group or group, or where an instruction or order was made passively to participate in a meeting from a superior member, such as the leader or executive officer, etc. of a crime group or group, and was merely complied with such instruction or order, it shall not be deemed that the case where a member holds or attends a private and courtesy ceremony or a congratulations meeting, etc. among the constituent members constitutes “activities” under Article 4 of the Punishment of Violences Act (see Supreme Court Decisions 2008Do10177, Sep. 10, 2009; 2009Do9484, Jan. 28, 2010).

Of the instant facts charged, the lower court upheld the first instance judgment convicting the Defendants of this part of the facts charged on the grounds that it is difficult to view that the Defendants’ participation in the event at △△ hotel on October 4, 2011 is beyond a reasonable doubt, on the grounds that it is difficult to deem that the Defendants’ participation in the event was an exceptional behavior beyond a private and religious level.

In light of the above legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending

3. Conclusion

All appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)