[1] In a case where at least two persons have gathered a joint larceny and commit a crime, whether a conspiracy of co-principal is recognized against a person who did not participate in a direct act (affirmative)

[2] The elements for the establishment of a co-principal

[3] The case holding that the judgment below which found the defendant not guilty on the ground that there was an error of misapprehension of the legal principle, in case where the defendant committed a theft of cash at the credit cooperative of the victim company Gap, Eul, and Eul, and the defendant committed a theft of property by combining the above office with the network at a place less than 100 meters away from the above office, and he was actually prosecuted for the primary purpose

[1] Articles 30 and 331 (2) of the Criminal Act / [2] Article 30 of the Criminal Act / [3] Articles 30 and 331 (2) of the Criminal Act

[1] [2] Supreme Court en banc Decision 98Do321 Decided May 21, 1998 (Gong1998Ha, 1829) / [2] Supreme Court Decision 2007Do235 Decided April 26, 2007, Supreme Court Decision 2007Do428 Decided April 26, 2007, Supreme Court Decision 2007Do236 Decided April 27, 2007

Defendant

Prosecutor

Attorney Kwon Jong-il

Gwangju High Court Decision 2010No519 decided January 27, 2011

The part of the judgment of the court below against the defendant is reversed, and that part of the case is remanded to the Gwangju High Court.

We examine the grounds of appeal.

1. Summary of the facts charged around the defendant

On August 29, 2003, the Defendant was sentenced to imprisonment for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes at the Gwangju District Court, on May 12, 2006, and on January 24, 2009, the execution of the sentence was terminated by the Gwangju Prison. The Defendant, the lower court, Co-defendant 1, and 2 knew that the victim Non-Indicted 1 keep taxi commissions in their treasury at the weekend, and they subsequently stolen them, and around July 18:50 on July 18, 2010, Co-defendant 1 in the lower court, prior to the office of Non-Indicted 1, at a place away from approximately 100 meters in the above office of Non-Indicted 1, and Co-defendant 2 in the lower court’s office, thereby destroying and damaging property from the above office of the Defendant and cutting them out to the victim’s office, thereby blocking all of them from using the CCTV’s key in cash and cutting them out to the Defendant’s office.

2. The judgment of the court below

The court below affirmed the judgment of the first instance court which acquitted the defendant of this part of the facts charged on the ground that, prior to the crime of this case 4 to 5 days, Co-Defendant 1 committed the crime of this case, he was committed jointly with the defendant, the defendant introduced her birth, and the defendant was notified about 15:0 through 16:00 on July 10, 199, prior to the crime of this case, Co-defendant 2 of the court below, or notified about 15:0 through 16:00 on July 10, 199, prior to the crime of this case, the defendant introduced Co-Defendant 2 of the court below to Co-Defendant 1 of the court below to the defendant, prior to the principal station 200 meters away from the office of the non-indicted partnership, which is the place where the crime of this case was committed, although the above office was not visible, all evidence submitted by the prosecutor collected and there is no other evidence to recognize this differently.

3. Judgment of the Supreme Court

A. The above determination by the court below is difficult to accept for the following reasons.

(1) In a case where more than 3 criminal conspireds to commit the larceny and at least 2 criminal committed the larceny by taking a cooperative relationship at the time and place at the scene of the crime, and at least 2 criminal took part in the conspiracy, the conspiracys may be recognized as a joint principal offender for the other criminal in light of the general theory of the joint principal offender, provided that the above 2 criminal who committed the larceny at the site, but did not directly contribute to the commission of larceny at the site, has a mark of the principal offender who committed the larceny at his/her own expense, provided that he/she had a sign of the principal offender who committed the larceny at his/her own expense (see Supreme Court en banc Decision 98Do321, May 21, 1998).

Meanwhile, the co-principal under Article 30 of the Criminal Act is established by satisfying the subjective and objective requirements, such as the implementation of a crime through functional control based on the intent of co-processing and the intent of co-processing. Even in cases where part of the competitors have not been carried out by directly sharing part of the elements of a crime, if it is acknowledged that a functional control through an essential contribution to a crime exists rather than a mere conspiracy, rather than a mere conspiracy, a functional control through an essential contribution to the crime, the crime cannot be exempted (see, e.g., Supreme Court en banc Decision 98Do321, May 21, 1998; Supreme Court Decisions 2007Do235, Apr. 26, 2007; 2007Do428, Apr. 26, 2007).

(2) According to the evidence duly adopted and examined by the court below, ① the defendant was proposed to commit the crime of this case from Co-defendant 1 before committing the crime of this case and consented to the defectiveness of the defendant, ② the defendant was informed of the plan to commit the crime of Co-defendant 2 before committing the crime of this case or obtained the consent of Co-defendant 2 of the court below. ③ the defendant was introduced to Co-defendant 2 of the court below on the day of committing the crime of this case, ③ the defendant was accompanied to the office of the non-indicted Co-defendant 1 and 2, which is the place of the crime of this case, accompanied with the defendant Co-defendant 1 and 2 of the court below. During the commission of the crime of this case, the defendant purchased the front door and shopping bags to Co-defendant 2 of the court below, ④ the defendant was used to commit the crime of this case with Co-defendant 2 of this case on behalf of Co-defendant 2 of the court below prior to committing the crime of this case, ⑤ the defendant was waiting to have been used as Co-defendant 2 of this case and the defendant's 1 of this case.

(3) If the facts are as above, even though the defendant did not have a view, the defendant conspired with Co-Defendant 1 and 2 of the court below that committed the crime of joint larceny at the scene, and Co-Defendant 2 of the court below that directly committed the crime of this case was introduced to Co-Defendant 1 of the court below. Co-Defendant 2 of the court below that purchased the escape wall and shopping bags for the crime of this case to Co-Defendant 2 of the court below, and purchased the escape wall and shopping bags to Co-Defendant 2 of the court below, and he was prudented with them until the crime of this case is completed, and transported the stolen cash with them until Co-Defendant 2 and 1 of the court below, and he was distributed some of them, and was engaged in a functional control through the essential contribution to the crime of this case, not just as a mere conspiracy, but as such, a functional control of the act of Co-Defendant 1 and 2 of the court below, therefore, he could be evaluated to have committed the crime of joint larceny by his own means.

B. Nevertheless, the court below affirmed the judgment of the court of first instance which acquitted the defendant of this part of the primary charges only for the reasons indicated in its holding. Such judgment of the court below is erroneous in the misapprehension of the legal principles as to joint principal offenders, which affected the conclusion of judgment.

4. Conclusion

Therefore, among the judgment of the court below, the part concerning the primary facts charged against the defendant cannot be reversed, and the part concerning the ancillary facts charged with the same body can be reversed. Thus, without examining the remaining grounds of appeal, the part concerning the defendant among the judgment 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 by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)