[1] The elements for establishing a co-principal

[2] The case holding that in a case where the defendant who participated in a road progress demonstration organized by the National Federation of Labor-Management Group, together with other participants of the demonstration, was arrested while committing an act of special obstruction of performance of official duties to police officers, etc., the crime committed by other participants of the demonstration after the defendant was arrested cannot be acknowledged as a co-principal's criminal liability

[1] The co-principal under Article 30 of the Criminal Code is established by satisfying the subjective and objective requirements, namely, the commission of a crime through functional control based on the intent of co-processing and the intent of co-processing. The so-called crime liability as a co-principal, depending on the case where a person who directly shared part of the elements of a crime and did not implement it, may be held liable for the so-called crime as a co-principal. However, in full view of the status, role, control or power over the progress of the crime in the whole crime, it should not be deemed that there is a functional control through an essential contribution to the crime, rather than a mere conspiracy.

[2] The case holding that in a case where the defendant who participated in a road progress demonstration organized by the National Federation of Labor-Management Group, together with other participants of the demonstration, was arrested while committing an act of special obstruction of performance of official duties to police officers, etc., the crime of conspiracy and co-principal cannot be acknowledged because it is difficult to view that another participant of the demonstration committed after the arrest of the defendant as the participant of the demonstration has a functional control over another participant of the demonstration

[1] Article 30 of the Criminal Act / [2] Article 30 of the Criminal Act

[1] Supreme Court Decision 2007Do235 Decided April 26, 2007, Supreme Court Decision 2007Do4702 Decided October 26, 2007, Supreme Court Decision 2008Do6551 Decided February 12, 2009

Defendant

Defendant

Law Firm Won, Attorneys Yang Chang-tae, Counsel for defendant-appellant

Seoul High Court Decision 2008No2518 decided April 2, 2009

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

The grounds of appeal are examined.

1. The co-principal under Article 30 of the Criminal Act is established by satisfying the subjective and objective requirements, namely, the commission of a crime through functional control based on the intent of co-processing and the intent of co-processing. The so-called crime liability as a co-principal, depending on the case where a person who has not directly shared part of the elements of a crime among the competitors may be held liable for the so-called crime as a co-principal. However, in full view of the status, role, control or power over the progress of the crime in whole, etc., it should not be deemed that there is a functional control through an essential contribution to the crime, rather than a mere conspiracy (see Supreme Court Decisions 2006Do1623, Dec. 22, 2006; 2007Do235, Apr. 26, 2007, etc.).

2. The lower court, on the grounds indicated in its reasoning, acknowledged all the Defendant’s joint principal offenders with respect to each of the crimes indicated in the holding that 3,300 members of the Korean Federation of Labor-Management Group (hereinafter “Korea Labor-Management Federation”) committed in the course of blocking and driving on the road from October 16, 2007 to 23:30 on the same day, and entering the road for high-speed viewing.

A. First, according to the evidence duly adopted by the court below, since approximately 3,30 persons who participated in the assembly including the defendant from around 15:00 on October 16, 2007, there were two-lanes of public gathering to prevent from participating in the assembly and demonstration from spreading the 3km from the Goyang-gu Seodong Seo-gu Seodong-gu Seodong-gu Seodong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-si, and the demonstration units arriving in front of the Goyang-si-si-si were destroyed by using the wire line to block the assembly and demonstration, and the defendant did not directly engage in the assembly and demonstration at around 15:00 old-gu-gu-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-si.

Therefore, the judgment of the court below that recognized the liability for the crime of conspiracy for each of the crimes in the judgment of the defendant is just, and there is no error of law by misunderstanding the legal principles as to the scope of establishment of the joint principal offender or by violating the rules of evidence.

B. However, it is difficult to accept the part of the judgment of the court below that recognized the defendant's joint principal liability for the crime committed by the participants of the demonstration after October 16, 2007, which was arrested by the defendant, for the following reasons.

According to the evidence duly admitted by the court below, the remaining 12 police officers except the non-indicted 1, suffered damage from the studs, bricks, and trees of the participants of the demonstration after the defendant was arrested, and the defendant is merely a mere fact that he was a simple participant in the assembly of this case as a member of the association of the Embrympis in the area of the Empis and Madles, and there is no evidence to prove that the defendant participated in the planning and public competition of the Empis as the organizer or that he had influenced the assembly of this case through the Empis' execution department.

If so, it is difficult to view that the defendant has functional control over the act of obstruction of performance of official duties against police officers, etc. committed after October 16, 2007, namely, the crime committed by the participants of demonstration, which was conducted after around 17:22 of the same day, since it is difficult to view that the defendant has functional control over the act of obstruction of official duties against police officers, etc. committed from around 17:30 to 23:00 of the same day

On the contrary, the lower court, which recognized the liability of the co-principal for all of the facts charged, cannot be maintained as it is because it erred by misapprehending the legal doctrine on the requirements for the establishment of the co-principal under Article 30 of the Criminal Act.

3. Therefore, without examining the remainder of the grounds of appeal, the lower court cannot be exempted from reversal. Since the lower court rendered a single sentence on all the facts constituting an offense as indicated in the judgment, it entirely reverses the lower judgment and remanded the case to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices

Justices Shin Young-chul (Presiding Justice)