[1] The standard for determining whether there was an implied conspiracy and functional control over a crime derived incidentally from the crime, other than the crime committed by the conspiracys to the conspiracys of co-principals

[2] The case affirming the judgment below that the defendant had a functional control over each of the crimes, such as assault, bodily injury, injury caused by special obstruction of performance of official duties, etc., on the ground that there was no specific conspiracy with respect to each of the above crimes, and there was a functional control over each of the above crimes through the intrinsic contribution, as well as implied conspiracy with respect to each of the crimes

[3] The meaning of "Assault" among the elements of the crime of causing bodily injury to a special obstruction of performance

[4] The case holding that the court below erred in the misapprehension of legal principles or erroneous determination of facts against the defendant's act of obstruction of performance of official duties in case where the defendant's act was committed by a special injury resulting from obstruction of performance of official duties in case where the defendant's act was committed by a police officer's entry into a factory in the strike, and it was merely limited to spreading lub or iron plates on the floor in preparation for a case where the victim, who is a police officer, was placed in the strike, and the above victims were flick down

[1] In the case of a co-principal, in light of all the circumstances such as the means and manner of the crime, the number of participating persons and their inclinations, the time and place of the crime, the possibility of contact with others in the course of the crime, the possibility of contact with others, and anticipated and anticipated possible reaction, etc., the conspiracys may lead to the crime committed by them, even though they could be anticipated or expected to result in incidental other crimes during the commission of the crime, or going to commit the crime without taking any reasonable measures sufficient to prevent the crime, and eventually, if the crime was anticipated to have been committed, then they should be deemed to have been committed, even though there was no contact with each other as to one of the derivative crimes, they should be deemed to have a functional control over the whole crime as well as implied conspiracy among the initial conspiracys.

[2] The case affirming the judgment below that the defendant had a functional control over each of the above crimes as well as implied conspiracys, and substantial contribution, in full view of the circumstances where the defendant was involved in the strike, the process and progress of the strike and the violence situation, the status and role of the defendant in the process, and the contents and nature of the documents prepared by the defendant, even though he did not specifically gather, or share and implement the crime, such as assault, bodily injury, or injury caused by a special obstruction of performance of official duties, etc. of labor union members, and thus, he was committed as a co-principal

[3] The crime of bodily injury resulting from the obstruction of performance of official duties under Article 144(2) of the Criminal Act is established by assault or intimidation against an organization or a public official who performs his duties by showing a threat to an organization or by carrying a dangerous object. The assault here refers to the exercise of force.

[4] The case holding that the court below erred in misapprehension of legal principles or erroneous determination of facts against the defendant's action, which applied the defendant's act as a crime of causing special obstruction of official duties, in case where the defendant's act cannot be viewed as an exercise of force against the above victims, i.e., assault, although it cannot be viewed as an assault, in case where the defendant's act cannot be seen as a crime of causing serious obstruction of official duties in the presence of the above victims, in case where it was merely a luxation of luxation or iron plates to be placed on the floor in preparation for the defendant's entry into a factory in the strike where the police officer, together with the labor union members, and it was not just a luxation of luxation or iron plates, and the above victims were dissepted, or flad with the iron plates.

[1] Article 30 of the Criminal Act / [2] Articles 30, 136(1), 144, 257(1), and 260(1) of the Criminal Act, Article 2(1)1, 3, and 3(1) of the Punishment of Violences, etc. Act / [3] Article 144(2) of the Criminal Act / [4] Article 144(2) of the Criminal Act

[1] Supreme Court Decision 2006Do1623 Decided December 22, 2006 (Gong2007Sang, 255), Supreme Court Decision 2007Do235 Decided April 26, 2007, Supreme Court Decision 2007Do428 Decided April 26, 2007

Defendant

Defendant

Attorney Park Ho-ei

Seoul High Court Decision 2010No671 decided May 28, 2010

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. Judgment on the grounds of appeal

Article 30 of the Criminal Act is established upon fulfilling the subjective and objective requirements, which relate to the implementation of a crime through functional control based on the intent of co-processing and the intent of co-processing. A person who does not directly share part of the elements of a crime may be liable for the so-called crime as a co-principal depending on the case. However, in order to do so by comprehensively taking into account the position, role, control or power over the progress of the crime, etc. of the entire crime, it should be deemed that there is a functional control over the crime by essential contribution, rather than a simple conspiracy (see Supreme Court Decisions 2006Do1623, Dec. 22, 2006; 2007Do235, Apr. 26, 2007). In such case, even if there was no possibility that the crime may have been committed by a person who did not meet the initial means and attitude of the crime, the number of persons participating in the crime, the time and time of the crime, the possibility of contact with another person during the crime, as well as any other factors anticipated to have been generated or anticipated to commit the crime.

In light of the above legal principles and records, the court below acknowledged facts as stated in its judgment, and affirmed the judgment of the court of first instance that affirmed the defendant's functional control over each of the crimes of this case except for the part to be determined in 2.1 above, since the defendant did not specifically gather or directly take part in the crime of violence, bodily injury, and obstruction of performance of special duties, and there was no violation of the rules of evidence or misapprehension of legal principles as to functional control over the functional control over each of the crimes of this case in the co-principal in the co-principal, as otherwise alleged in the ground of appeal.

2. Judgment of the court below as to the defendant's injury resulting from the obstruction of performance of special duties against the non-indicted 1, 2, 3, and 4 on July 24, 2009

On July 24, 2009, the lower court acknowledged that the Defendant had Nonindicted 1, a victim Nonindicted 1, a police officer belonging to the 5-dong branch of the Gyeonggi Provincial Police Agency, lux on the Roloice Factory around 15:30 on July 24, 2009, in excess of lux lux luxbri in advance, had Nonindicted 2, a police officer in the same place around 15:40 on the same day, and had Nonindicted 3 lux lux lubri in advance lux lubri in excess of lubrist lubri in advance, and caused Nonindicted 3 to have Nonindicted 4 mitigated in the steel board, and caused Nonindicted 4 to be mitigated in the same place at around 16:0 on the same day, and caused Nonindicted 4 to suffer injury to the Defendant’s free floor by applying the above Articles 1, 2, 3, and 4 of the Criminal Act to treat the remaining number of days of harm to the Defendant’s execution of duty.

However, the judgment of the court below on this part cannot be accepted for the following reasons.

The crime of injury resulting from the obstruction of performance of special duties under Article 144(2) of the Criminal Act is established by means of violence or intimidation against a public official who exhibits a threat of organization or a large number of people, or carrying a dangerous object, thereby causing the injury of the public official. Here, the assault means the exercise of force.

However, even based on the facts found by the court of first instance maintained by the court below, each of the above victims is merely a fact that the defendant et al. was flicked down with or flicked with the steel plates set up in the floor in advance, and the defendant et al., except in special circumstances where the above lux or steel plates were spreaded with the intent to interfere with his official duties in the presence of each of the above victims in the presence of each of the above victims, and if the above victims merely spread the above lux or steel plates in advance during their absence in preparation for their entry into the above factories, it cannot be viewed as an exercise of force against the above victims, i.e., assault., assault.

Nevertheless, the court below erred by misapprehending the legal principles on the injury resulting from a special obstruction of performance of official duties, or failing to exhaust all necessary deliberations, or by misunderstanding facts against the rules of evidence, which affected the conclusion of the judgment.

3. Conclusion

Therefore, the part of the judgment of the court below regarding the defendant's injury resulting from special obstruction of performance of official duties against non-indicted 1, 2, 3, and 4 on July 24, 2009 should be reversed. Since one sentence is imposed on the remaining crimes of the defendant and concurrent crimes under the former part of Article 37 of the Criminal Act, the whole 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 by the assent

Justices Lee In-bok (Presiding Justice)