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We reverse the judgment of the court below.
Defendant
A shall be punished by imprisonment with prison labor for eight months and by imprisonment with prison labor for six months.
(b).
Reasons
1. According to the evidence submitted by the Prosecutor, the Defendants conspired to and participated in the instant telephone financing fraud crime can be acknowledged.
2. Determination
A. We examine ex officio prior to the judgment on the grounds for ex officio appeal.
At the trial of the party, the prosecutor applied for changes in the indictment to add each of the ancillary charges to each of the original trials, and this court permitted this and changed the subject of the trial.
As seen later, this Court found the Defendant guilty of the charges added in preliminary cases, so the judgment of the court below is no longer able to maintain any further.
In addition, the judgment of the court below against Defendant A was rendered and the prosecutor filed an appeal against each of the above two appeals cases, and this court decided to consolidate the above two appeals cases, and as seen thereafter, the crime of each of the ancillary facts charged in the above two appeals cases that the court found Defendant A guilty is one of the concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, the judgment of the court below cannot maintain it as it is.
However, despite the above reasons for ex officio reversal, the prosecutor's assertion of mistake is still subject to the judgment of this court.
B. In order to establish a joint principal offender to determine the prosecutor’s assertion of mistake of facts, it is a subjective element that requires the fact of implementation of a crime through functional control by a joint doctor as an objective element. As such, the intent of joint processing as a subjective element is insufficient to recognize another person’s crime and to accept it without preventing it. It should be one of the two to commit a specific criminal act with a common intent, and it should be transferred to one’s execution by using another’s act (see Supreme Court Decision 95Do2461, Jan. 26, 1996, etc.).