[1] The criteria for determining illegality of the investigation of a vessel

[2] In a case where Gap asked Eul to provide information about the smuggling import of philophones to Eul for the purpose of stockpiling a public figure for the release of the South living together who is arrested by the investigation agency, Eul promised Eul to pay the price to Eul, Byung recommended Byung to import philophones in sequential order, Byung consented to the import of philophones and caused philophones, the case holding that Eul, Byung et al. enticed Eul to independently act with the investigation agency without direct connection with the investigation agency, and it does not constitute an illegal naval investigation

[1] Article 13 of the Criminal Act / [2] Article 13 of the Criminal Act

[1] Supreme Court Decision 2006Do2339 decided Jul. 12, 2007 (Gong2007Ha, 1401)

Defendant

Defendant

Attorney Lee Jae-hoon

Seoul High Court Decision 2007No1232 decided August 31, 2007

The appeal is dismissed. 80 days out of detention days after the appeal shall be included in the original sentence.

We examine the grounds of appeal.

It is unlawful that the investigative agency arrests the criminal by inducing a person who does not have the criminal intent by using deceptive means, schemes, etc., and thereby inducing the criminal intent. In a specific case, whether the case constitutes an illegal naval investigation should be determined by comprehensively taking into account the type and nature of the relevant crime, the status and role of the inducer, the details and method of inducing the induced, the response of the inducedr, the criminal history of the induced person, and the illegality of the induced act itself. Even if the inducer directly related to the investigative agency appeals to the situation or appraisal of the induced person by taking advantage of personal friendly relationship with the induced person, it is difficult or difficult for the induce the induced person to take advantage of, or refuse to take advantage of, monetary or psychological pressure or threat, or excessively interfering with the provision of money to be used for the crime, etc., it is not allowed for the induced person to act as an illegal naval investigation. However, even if the inducer did not directly have a relation with the investigative agency, it cannot be deemed that the induced person requested the inducing person to commit the crime or the crime by 2070 criminal intent.

In light of the facts indicated in the judgment below, it is difficult to view that the criminal intent of Nonindicted 4 to commit the crime of smuggling import on May 26, 2006 was caused only by the investigation agency’s use of Nonindicted 4, etc., and even if Nonindicted 1’s solicitation or intimidation caused the criminal intent to commit the crime, as alleged by the Defendant, Nonindicted 2 was arrested on May 2, 2006 at the Gyeonggi Provincial Police Agency, the lower court’s finding that Nonindicted 4 and Nonindicted 5’s use of Nonindicted 4’s cellphone import by Nonindicted 4’s request to the investigation agency for information on cellphone import and that Nonindicted 6’s use of Nonindicted 4’s cellphone import, and that Nonindicted 4 and Nonindicted 5 independently consulted with Nonindicted 5’s prosecutor by means of questioning Nonindicted 1’s request for information on cellphone import, etc., and that Nonindicted 4 and Nonindicted 5’s use of Nonindicted 5’s cellphone import by way of questioning Nonindicted 6’s criminal intent to commit the crime.

In addition, the Defendant appealed to the entire judgment of the court below, but only submitted the grounds for appeal against the violation of the Act on the Control of Narcotics, etc. due to the smuggling import of phiphones, and did not submit the remaining grounds for appeal against each other.

Therefore, the appeal shall be dismissed, and part of the detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)