The legislative intent of Article 4(1) of the Punishment of Violences, etc. Act and the meaning of “activities as a member of a criminal organization” as referred to in the said Article / Where a person constitutes a criminal organization or a person who has joined it acts as a further member, the relationship between the “organization or accession of a criminal organization” and “activities as a member of a criminal organization” (=general crime)

Article 4(1) of the Punishment of Violences, etc. Act provides that an act of organizing, joining, or joining, an organization aimed at committing a criminal act prescribed in the Act shall be punished. The legislative intent is to prevent the creation and existence of a criminal organization having the nature of preparation and conspiracy for a criminal act regardless of whether a specific criminal act has been committed. In addition, the activity of a member of a criminal organization referred to in the above provision refers to an active act aiming at the continuation and maintenance of a criminal organization based on the internal regulation of the criminal organization and the organizational and collective decision-making based on the guidance system.

However, the organization or joining of a criminal organization is scheduled to act as a member of a criminal organization regardless of the implementation of a criminal act, and its activities as a member of a criminal organization are naturally premised on the formation or joining of a criminal organization. Thus, both parties can recognize the unity and continuity of a criminal's criminal intent in that they constitute a series of preliminary and maternity processes for the formation, continuation, and maintenance of a criminal organization and fall under the process of preparation and conspiracy of a criminal act.

Therefore, if a person who forms or joins a crime organization is more members, this is a single comprehensive crime.

Article 37 of the Criminal Act and Article 4(1) of the Punishment of Violences, etc. Act

Supreme Court Decision 2009Do2337 Decided June 11, 2009 Supreme Court Decision 2008Do10177 Decided September 10, 2009 (Gong2009Ha, 1697) Supreme Court Decision 2013Do6401 Decided October 17, 2013

Defendant 1 and 10 others

Defendants and Prosecutor (Defendant 4)

Attorney O Ho-hoon

Seoul High Court Decision 2014No3497 decided April 24, 2015

Of the judgment of the court below, the part against Defendant 4 and 5 and the part against Defendant 8 and 9 are reversed, and this part of the case is remanded to the Seoul High Court. The remaining defendants' appeals are all dismissed.

1. Judgment on the grounds of appeal by the remaining Defendants except Defendant 8 and Defendant 9

A. As to the grounds of appeal by Defendants 1 and 10

1) Examining the relevant legal principles and the evidence duly admitted by the first instance court, the lower court was justifiable in finding the Defendants guilty of the facts constituting the crime set forth in paragraph 3 of the first instance trial against the Defendants on the grounds as stated 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 principle of free evaluation of evidence

2) According to Article 383 subparag. 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years is imposed, an appeal on the grounds of unfair sentencing is allowed. Thus, in this case where a more minor sentence is imposed against the Defendants, the argument that the sentencing of the sentence is unreasonable is not

B. As to Defendant 2’s ground of appeal

1) Examining the evidence duly admitted by the lower court and the first instance court in light of the evidence, the lower court’s rejection of the Defendant’s assertion of mental and physical disability as to the facts constituting the first instance offense under Article 1(4) of I at the time of the first instance trial on the grounds stated in its reasoning is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle

2) In the instant case where the Defendant was sentenced to imprisonment for less than 10 years, the argument that the amount of punishment imposed is unreasonable is not a legitimate ground for appeal.

3) Of the appellate brief for Defendant’s submission, the part that “the court below erred by violating the Constitution, laws, orders, and rules, or by misapprehending the legal principles, which affected the conclusion of the judgment,” is merely stated in such assertion, and did not state specific reasons therefor, and thus, it cannot be deemed a legitimate ground for appeal.

C. As to Defendant 3’s ground of appeal

1) According to Article 383 subparag. 4 of the Criminal Procedure Act, only a case on which death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years has been imposed, an appeal may be filed on the ground that the judgment of the court below affected the conclusion of the judgment or that there is a significant reason to recognize the amount of the punishment significantly unfair. As such, in the instant case where a more minor sentence has been imposed against the Defendant, the argument that only the fact-finding of the court below or that the punishment is too unreasonable is not a legitimate ground for appeal.

2) In the appellate brief for Defendant’s submission, the part that “the court below erred by violating the Constitution, laws, orders, and rules, or by misapprehending the legal principles, which affected the conclusion of the judgment,” is merely stated in such assertion, but did not state specific reasons therefor, and thus, it cannot be deemed a legitimate ground for appeal.

D. As to Defendant 4 and Defendant 5’s grounds of appeal

Examining the evidence duly admitted by the lower court and the first instance court in light of its reasoning, the lower court’s determination that the first instance court found Defendant 4 guilty of the facts constituting the crime of Paragraph 6 of I and Paragraph 2 of I in the first instance trial against Defendant 5 is justifiable. 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 principle of free evaluation of evidence in violation of logical and empirical rules,

E. As to Defendant 6 and Defendant 11’s grounds of appeal

In this case where a sentence of imprisonment with labor for less than ten years has been imposed on the Defendants, the allegation that the amount of punishment is unreasonable is not a legitimate ground for appeal.

F. As to Defendant 7’s ground of appeal

1) Examining the evidence duly adopted by the lower court and the first instance court in light of its reasoning, the lower court’s determination that the first instance court was guilty of the facts constituting the crime set forth in paragraph (5) of I at the time of the first instance trial on grounds as stated in its reasoning is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of

2) In the instant case where the Defendant was sentenced to imprisonment for less than 10 years, the argument that the amount of punishment imposed is unreasonable is not a legitimate ground for appeal.

2. Judgment on Defendant 9’s grounds of appeal

A. According to the reasoning of the lower judgment and the record, the following facts are as follows: ① (a) the Defendant was sentenced to imprisonment with prison labor for eight months on February 14, 2014 in the Incheon District Court Branch Branch of the Incheon District Court for the violation of the Electronic Financial Transactions Act; (b) the criminal facts of the said final judgment include “the Defendant acquired the passbook (Account Number omitted) and cash card in the name of the community credit cooperatives from ○○○○○, a local community credit cooperative located in Seocheon-gu, Seocheon-gu, Seoul, 2013, around May 12, 2013.” (c) The part of the charge of the instant case set forth in No. 10 of the attached Table No. 10 of the judgment of the lower court among the charges of the instant case, “if the Defendant and his name were to create a passbook, it would act as if the Defendant and his name were to do so; and (c) made it possible for the victim to open the passbook under the name of the community credit cooperatives and its password.”

B. The identity of the original facts charged or the facts charged is based on the defendant's act and the social facts, and its normative elements should also be considered (see Supreme Court Decision 98Do749, Aug. 21, 1998). However, the facts charged and the facts charged in the above final judgment are the same as the date and place of the crime, the other party and the means of access subject to the crime, and the defendant's act of taking the means of access, which is conducted under the single criminal intent for the acquisition of the means of access, is a series of acts that are conducted under the same criminal intent for the acquisition of the means of access, and are in an indivisible relationship with the above acquisition. Thus, the facts charged and the facts charged in the above final judgment cannot be said to be the same as the basic facts.

Nevertheless, the lower court rejected the Defendant’s acquittal claim, which determined otherwise that the facts charged as above are not identical to the facts charged in the final judgment. In so doing, it erred by misapprehending the legal doctrine on the identity of the facts charged and res judicata of the final and conclusive judgment, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal

3. Determination on the prosecutor’s grounds of appeal, and ex officio determination on the point of joining the criminal organization against Defendants 5 and 8, and on the activities of members of the criminal organization

A. Article 4(1) of the Punishment of Violences, etc. Act provides that an act of forming, joining, or joining, an organization aimed at committing a criminal act prescribed by the Act shall be punished. This legislative intent is to prevent the creation and continuation of a criminal organization having the nature of preparation and conspiracy for such criminal act regardless of whether a specific criminal act has been committed (see Supreme Court Decision 2009Do2337, Jun. 11, 2009). In addition, the activity of a member of a criminal organization refers to an active act aiming at the continuation and maintenance of a criminal organization based on an organized and collective decision in accordance with the internal discipline and common system (see Supreme Court Decision 2008Do10177, Sept. 10, 2009, etc.).

However, the organization or joining of a criminal organization is scheduled to act as a member of a criminal organization regardless of the implementation of a criminal act, and its activities as a member of a criminal organization are naturally premised on the formation or joining of a criminal organization. Thus, both parties can recognize the unity and continuity of the criminal's criminal intent in that they constitute a series of preliminary and negative processes for the formation, continuation, and maintenance of a criminal organization and fall under the process of preparation and conspiracy of a criminal act.

Therefore, it is reasonable to view that a person who constitutes or joined a crime organization is in the relation of a single comprehensive crime if he/she acts as more members.

Meanwhile, the statute of limitations for a single comprehensive crime is proceeding from the time when the last criminal act has been completed (see Supreme Court Decision 2002Do2939, Oct. 11, 2002). When individual criminal acts constituting a single comprehensive crime were committed before and after a final judgment of a different type of crime, the crime is not divided into two crimes, but is completed at the time of the last criminal act which is the final judgment after the final judgment (see Supreme Court Decision 2002Do5341, Aug. 22, 2003).

B. First, we examine the Prosecutor’s grounds of appeal.

1) According to the reasoning of the judgment of the court of first instance, on the premise that Defendant 4 was a concurrent crime with regard to the establishment of a criminal organization and the activities as a member of a criminal organization, the first instance court determined that the membership of the criminal organization was determined separately on the grounds that it was a criminal act after the final judgment, and that the activity as a member of the criminal organization was a criminal act after the final judgment. The lower court, while maintaining the relation to the acceptance of the crime in the judgment of the first instance, and rendered a judgment on the charge of joining the criminal organization on May 14, 2014 on the ground that the statute of limitations for seven years after the completion of the act of joining the criminal organization on January 14, 207, the statute of limitations for prosecution of the instant case was expired.

2) However, examining the record in light of the aforementioned legal principles, the statute of limitations on Defendant 4’s admission to a criminal organization is in progress from the time when the criminal act was completed as a member of the criminal organization on October 1, 2013, which was an inclusive crime, and it is evident that the instant public prosecution was instituted prior to the expiration of the statute of limitations.

Nevertheless, the court below erred by misapprehending the legal principles on the acceptance of a criminal organization's membership and the statute of limitations for comprehensive crimes, which affected the conclusion of the judgment, and by misapprehending the legal principles on the statute of limitations for general crimes, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

C. Next, in the judgment below, we examine the points of joining the criminal organization against Defendants 5 and 8 and the activities of members of the criminal organization ex officio.

According to the reasoning of the judgment of the first instance, the first instance court maintained the judgment of the first instance court, on the premise that the membership of the criminal organization and the activity of the members of the criminal organization are concurrent crimes, the membership of the criminal organization against the Defendant 5 and Defendant 8 can be determined separately on the grounds that the final judgment was made before the final judgment, and that the activity of the members of the criminal organization was a criminal act after the final judgment.

However, in light of the above legal principles, since the membership of a criminal organization and the activity of a member of a criminal organization are in the relation of an inclusive crime, the court below should have sentenced all of them to a single punishment after the final judgment.

Nevertheless, the lower court erred by misapprehending the legal principles on the number of crimes, thereby adversely affecting the conclusion of the judgment, that the lower court maintained the first instance judgment as it constitutes concurrent crimes with the joining of criminal organizations and the activities as members of criminal organizations.

4. Scope of reversal

A. Of the lower judgment, the charge of violation of the Punishment of Violences, etc. Act (joint conflict) against Defendant 9 on May 12, 2013 should be reversed on the grounds as seen earlier. Since the lower court rendered a single sentence on the grounds that the said part and the remainder of the conviction are concurrent crimes under the former part of Article 37 of the Criminal Act, the part of the lower judgment’s conviction against the said Defendant should be reversed in its entirety.

B. Of the judgment below, joining the criminal organization against Defendant 4 should be reversed on the grounds as seen earlier, and all activities as a member of the criminal organization related to a single comprehensive crime should be sentenced to a single punishment after a final judgment. Since the court below maintained the first instance court which sentenced one punishment on the ground that the part of the activities as a member of the criminal organization is concurrent crimes with the remaining guilty part of Article 37 of the Criminal Act, the part of the judgment below against the above defendant should be reversed in its entirety.

C. Of the judgment below, the point of joining each criminal organization against Defendant 5 and Defendant 8 and the point of activities as a member of the criminal organization should be reversed on the grounds as seen earlier. (1) The judgment of the court of first instance maintained by the court below should be reversed. (1) The part of the judgment of the court of first instance against Defendant 5 and the part of the judgment of the court of first instance against Defendant 8 should be reversed on the grounds that: (1) the point of joining the criminal organization of Defendant 5 and the point of activities as a member of the part of the crime organization, and each of the activities as a member of the remaining crime organization are concurrent crimes under the former part of Article 37 of the Criminal Act; and (2) the part of the judgment of the court of first instance against Defendant 5 and the part of the judgment of the court of first instance against Defendant 8 should be reversed.

5. Conclusion

Therefore, without further proceeding to decide on Defendant 8’s grounds of appeal and the remaining grounds of appeal by Defendants 4, 5, and 9, the part against Defendants 4, 5, and the guilty part of the judgment below against Defendants 8, and 9 are reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining Defendants’ appeals are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)