[1] In a case where a police officer discovered an offender on the part of a police officer who was appointed but did not take appropriate measures in accordance with his/her duties and instead let such offender escape, whether the crime of abandonment of duty is established separately in addition to the crime of escape of an offender (negative)

[2] The timing and termination of the crime of escape of an offender

[1] Articles 122 and 151 (1) of the Criminal Act / [2] Article 151 (1) of the Criminal Act

[1] Supreme Court Decision 96Do51 Decided May 10, 1996 (Gong1996Ha, 1941), Supreme Court en banc Decision 2005Do3909 Decided October 19, 2006 (Gong2006Ha, 1952) / [2] Supreme Court Decision 95Do577 Decided September 5, 1995 (Gong1995Ha, 3457), Supreme Court Decision 2012Do6027 Decided August 30, 2012 (Gong2012Ha, 1641)

Defendant 1 and one other

Defendant 1 and Prosecutor (Defendant 2)

Law Firm Yu Jin, Attorneys Kim Yong-ho et al.

Seoul High Court Decision 2014No2351 decided January 9, 2015

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

The grounds of appeal are examined.

1. Judgment on Defendant 1’s grounds of appeal

A. As to the escape of an offender

Examining the reasoning of the lower judgment in light of the evidence duly admitted, it is justifiable for the lower court to have determined that the Defendant was guilty of committing an offense among the facts charged in the instant case (excluding the acquittal portion) on the grounds as indicated in its reasoning. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the

B. As to the abandonment of duty on July 25, 2010

We examine Defendant 1’s grounds of appeal ex officio prior to determination.

1) Of the instant facts charged, the lower court upheld the first instance judgment that determined that the crime of escape of an offender and the crime of abandonment of duties was both constituted, and that both crimes are in a substantive concurrent relationship with each other, with respect to the abandonment of duties on July 25, 2010.

2) However, it is difficult to accept such determination by the lower court for the following reasons.

A) If a police officer discovered an offender on the part of a police officer who was appointed but did not take appropriate measures in accordance with his/her duties and instead allowed such an offender to flee, the illegality in the course of performing his/her duties shall be deemed to be included in the crime of capital flight. In such a case, only the crime of capital flight is established, and the crime of capital flight is not established separately (see, e.g., Supreme Court Decisions 96Do51, May 10, 1996; 2005Do3909, Oct. 19, 2006).

On the other hand, the crime of escape of an offender does not reach the number by allowing the criminal to escape, but during the continuance of the crime, and only when the act is completed, the crime is completed (see Supreme Court Decisions 95Do577, Sept. 5, 1995; 2012Do6027, Aug. 30, 2012, etc.).

B) Of the facts charged in the instant case, the gist of Defendant 1’s abandonment of duties on July 25, 2010 is that “Defendant 1, a police official, knowingly known that he was appointed by the Nonindicted Party and was in flight, but did not arrest the Nonindicted Party and did not abandon his duties without any justifiable reason,” and that “Defendant 1, a police official, conspired with Defendant 2 and the Joint Defendant 3 of the lower court to escape the Nonindicted Party designated from March 2010 to October 2010.” The first instance court found Defendant 1 guilty of committing the crime, and maintained the first instance judgment.

C) According to the facts charged as of July 25, 2010 and the facts charged by the first instance court and the court below found guilty, Defendant 1, a police official, in collusion with Defendant 2 and the joint Defendant 3 of the court below, continued the act of allowing the Nonindicted Party to escape, who is the designated recipient, from March 25, 2010 to October 2010, and did not arrest the Nonindicted Party on July 25, 2010, even though the act of escape continues.

Examining Defendant 1’s above criminal escape and abandonment of duty in light of the legal principles as seen earlier, the illegality of Defendant 1’s duty performance due to Defendant 1’s abandonment of duty on July 25, 2010 is deemed to be included in the criminal escape committed on or around March 2010. In such a case, only the crime of escape of a criminal who committed an act is established, and the crime of abandonment of duty, which is an omission, is not established separately.

D) Nevertheless, the lower court upheld the first instance judgment that determined that the crime of abandonment of duties was established on July 25, 2010 along with the crime of escape of an offender and that both crimes were concurrent crimes. In so doing, the lower court erred by misapprehending the legal doctrine on the establishment of the crime of abandonment of duties, thereby adversely affecting the conclusion of the judgment.

C. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes due to the demand for money and valuables

Examining the reasoning of the lower judgment in light of the evidence duly admitted, it is justifiable for the lower court to have found the Defendant guilty of violating the Act on the Aggravated Punishment, etc. of Specific Crimes due to the demand for money and valuables among the facts charged (excluding the portion not guilty) on the grounds as stated in its reasoning. In so doing, contrary to what is alleged in the grounds of appeal, the lower

D. Scope of reversal

Of the lower judgment, the part of the lower judgment on July 25, 2010 on abandonment of duties should be reversed on the grounds as seen earlier. Since the reversed part and the remaining criminal facts that the lower court found guilty constitute concurrent crimes under the former part of Article 37 of the Criminal Act, one of the lower judgment’s convictions against Defendant 1 should be reversed in its entirety.

2. Determination on the prosecutor’s grounds of appeal on Defendant 2

Examining the reasoning of the judgment below in light of the relevant legal principles and records, it is justifiable to maintain the judgment of the court of first instance which acquitted Defendant 2 on the ground that there was no evidence of crime as to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (reconciliation) due to the receipt of money and valuables from April 17, 2009 among the facts charged in the instant case against Defendant 2 on the grounds stated in its reasoning. In so doing, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of the logical and empirical rules

3. Conclusion

Of the lower judgment, the part of the lower judgment against Defendant 1’s conviction is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Prosecutor’s appeal against Defendant 2 is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)