The requirements for the establishment of a joint principal offender, and whether the relationship of conspiracy can be recognized even if the joint principal offender was unaware of the method of deception (affirmative)

Articles 30 and 347 of the Criminal Act

Supreme Court Decision 97Do1706 Decided September 12, 1997 (Gong1997Ha, 3215) Supreme Court Decision 99Do4923 Decided March 14, 2000 (Gong200Sang, 1011)

Defendant 1 and one other

Defendant 1 and Prosecutor

Han Law Firm, Attorney Kim Jong-ho

Seoul High Court Decision 2012No3649 decided April 25, 2013

The part of the judgment of the court below regarding Defendant 2 is reversed, and that part of the case is remanded to the Seoul High Court. Defendant 1’s appeal and prosecutor’s appeal against Defendant 1 are dismissed.

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

1. As to the prosecutor's ground of appeal on Defendant 1

Examining the reasoning of the lower judgment in light of the record, the lower court was justifiable to have rendered a not-guilty verdict on the charge of violating the Act on the Aggravated Punishment, etc. of Specific Crimes against Defendant 1 among the facts charged in the instant case on the ground that there is no evidence of the crime. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence

2. As to the Prosecutor’s ground of appeal on Defendant 2

A. In relation to accomplices who are co-processed with two or more offenses, the conspiracy does not require any legal punishment, but is only a combination of two or more persons to realize a crime by jointly processing and committing a crime. If the combination of intent is made in order or impliedly, the conspiracy relationship is established. A person who does not directly participate in the act of the commission is held liable as a co-principal even if he/she did not engage in the act of the commission. Therefore, even if he/she did not know the method of deception specifically, the conspiracy relation cannot be denied (see Supreme Court Decision 97Do1706, Sept. 12, 1997).

B. (1) On the grounds indicated in its reasoning, the court below found Defendant 2, who is a public official, not only based on the evidence submitted by the prosecutor, that it was not sufficient to recognize that Defendant 1, who is a public official, had the SH corporation acquire an apartment by deceiving Defendant 1 by means of preparing and exercising a false official document, and had Nonindicted 1, who is not eligible for the application for parcelling-out acquire the apartment, and that he conspired to commit this part of the crime, by explicitly or explicitly,

(2) However, we cannot agree with the above judgment of the court below.

According to records and evidence duly adopted, the following facts are revealed.

① Defendant 2 sold the application form for parcelling-out with respect to the urban planning project. ② Defendant 2, in the prosecutor’s investigation around November 2004, confirmed the contents of the instant post-road road expansion project in relation to the instant urban planning project in the following year, and asked Defendant 1 who is a public official, at any time and at any time the said project is performed. ③ Defendant 2 sold the “self-governing Area ” which is the application form for parcelling-out with respect to an unauthorized Building located in the said construction area after the date of the public announcement of the authorization for project implementation related to the said construction. Since the date of the public announcement of the authorization for project implementation, the purchaser of the unauthorized Building after the date of the public announcement of the authorization for project implementation cannot legally acquire the application form. ④ Nonindicted 1’s mother, Nonindicted 2, the police investigation, stated that Defendant 2 was unable to sell the unauthorized Building subject to the said public announcement due to public inspection. ⑤ Defendant 2 received the money from Nonindicted 3, the actual owner of the building, and remitted the money from the head of Yongsan-gu.

In light of the following circumstances revealed in this fact, i.e., (i) Defendant 2 appears to have been aware of the fact that, at the time of selling and selling Nonindicted 1 and the instant non-indicted 1, he would have been unable to obtain the right to purchase the unauthorized Building after the date of the public announcement of the authorization for project implementation; (ii) Defendant 2 was unaware of the date of public announcement of the authorization for project implementation concerning the instant after the date of public announcement of the authorization for project implementation, but even according to Defendant 2’s statement, Defendant 2 asked Defendant 1 in advance about the said construction plan; and (ii) Defendant 2 stated that Defendant 2 was unable to sell the relevant unauthorized Building due to the public announcement at the time of public announcement of the authorization for project implementation; and (iii) Defendant 2 was aware of the fact that the instant unauthorized Building was subject to the sale after the date of public announcement of the authorization for project implementation on the said construction; and (iv) transferred the removal compensation money to Defendant 1 by being transferred the compensation money to the head of the Tong, which was not made by Defendant 1 in detail.

(3) If so, on different premise, the lower court determined that Defendant 2 cannot be deemed to have conspiredd to commit this part of the fraud with Defendant 1 explicitly or implicitly, thereby exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules.

3. As to Defendant 1’s ground of appeal

Examining the reasoning of the judgment below in light of the records, the court below was just in finding Defendant 1 guilty of fraud among the facts charged in this case against Defendant 1 on the grounds as stated in its reasoning, and there was no error by misapprehending the legal principles as to res judicata in a criminal trial and abuse of

In addition, according to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for more than ten years has been imposed, an appeal on the grounds of unfair sentencing is permitted. Thus, in this case where Defendant 1 was sentenced to a minor sentence, the argument that the amount of punishment is unreasonable is not legitimate grounds for

4. Conclusion

Therefore, the part of the judgment of the court below regarding Defendant 2 is reversed, and that part of the case is remanded to the court below for a new trial and determination. The appeal by Defendant 1 and the appeal by the prosecutor against Defendant 1 is dismissed, respectively. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)