[1] In a case where a police officer ordered to arrest an offender from a public prosecutor causes the escape of the offender, whether a crime of abandonment of duty is established separately in addition to the crime of escape of the offender (negative)

[2] Whether the error of determination as to part of the several crimes in a mutually competitive relationship affects the conclusion of the judgment (affirmative)

[1] The criminal facts that the defendant was ordered by the prosecutor to arrest the criminal but did not take appropriate measures according to his/her duties and recommended the criminal to flee to the criminal by telephone shall be deemed as having been included in the act of attempted flight. In such a case, only the crime of attempted flight, which is the crime of attempted flight, is established, and the crime of attempted flight, which is the crime of attempted flight, is not established separately.

[2] Since there is a difference in determining the sentence due to the difference in the case where only a part of the several crimes are found guilty and the case where the whole conviction is found, the above / [1] crime is established at the same time as the crime is committed, and both crimes are in a relationship of commercial concurrent crimes, which affected the conclusion of the judgment of the court below, which held that the crime in the above / [1] is established at the same time as the crime is committed.

[1] Articles 40 and 122 of the Criminal Act, Article 151 (1) of the former Criminal Act (amended by Act No. 5057 of Dec. 29, 1995) / [2] Articles 40 and 51 of the Criminal Act

[1] Supreme Court Decision 72Do722 decided May 9, 1972 (No. 20-2, 194Sang), Supreme Court Decision 92Do334 decided December 24, 1993 (Gong1994, 582), Supreme Court en banc Decision 80Do384 decided Dec. 9, 1980 (Gong1981, 13473), Supreme Court Decision 83Do306 decided Mar. 13, 1984 (Gong1984, 750), Supreme Court Decision 95Do974 decided Jul. 28, 1995 (Gong1984, 750)

Defendant

Defendant

Attorney Kim Kim-ju

Daejeon High Court Decision 95No539 delivered on December 22, 1995

The judgment below is reversed. The case is remanded to Daejeon High Court.

The grounds of appeal by defense counsel are examined.

1. According to the reasoning of the judgment below, the court below found on April 17, 1995 that the defendant of the first instance maintained the relation between the defendant of this case and the defendant of this case's non-indicted 1, 2, 3, 4, 5, and 6, and reduced and concealed the crime by requiring the above non-indicted 2, 4, and 5 to arrest him as a general leader and to arrest him, and the above non-indicted 1, 2, 3, 4, and 5's act of having the above non-indicted 1, 1, 3, 4, and 5 to be an offender who committed a crime corresponding to a fine or heavier punishment on April 17, 1995 at the Hongsung Branch Office of the Daejeon District Prosecutors' Office of the Daejeon District Prosecutors' Office, which is the general director of the Taekwondo Association, and notified the above non-indicted 1, the above non-indicted 1, a general criminal defendant of this case's act of escape from the above criminal office of the court below.

2. Examining the reasoning of the judgment of the court below in light of the records, it is just to affirm the judgment of the court of first instance which found the defendant guilty, and there is no error in the misapprehension of legal principles as to a violation of the rules of evidence or an escape of a criminal, as otherwise alleged in the ground of appeal. The grounds of appeal pointing this out are not acceptable.

3. However, since the facts of the first instance judgment maintained by the court below that the defendant did not take proper measures according to his duties despite being ordered to arrest the defendant 1 as ordered by the prosecutor, and instead, caused the defendant 1 to escape by telephone, it shall be deemed that the crime of violation of occupational duty is included in the act of escape. In such a case, it is reasonable to deem that only the crime of escape, which is an offender, is established and the crime of abandonment of duty, is not established separately (see Supreme Court Decisions 71Do176, Aug. 31, 197; 72Do722, May 9, 197; 92Do3334, Dec. 24, 1993; 92Do374, Dec. 24, 1993; 97Do1974, etc.). Thus, the part of the court below's judgment which found the defendant guilty of the crime of violation of occupational duty and the relation between the crime of omission and the crime of abandonment cannot be established.

4. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition with the assent of all Justices who reviewed the appeal.

Justices Park Jong-chul (Presiding Justice)