[1] The requirements to not be held liable as a co-principal by a competitor who has participated in the public contest, departing from the public contest relationship

[2] In case where an application for modification of indictment was filed, whether the court erred in its procedural error in serving only one of the defendant and his defense counsel (negative)

[3] Whether Article 10 of the Act on the Aggravated Punishment, etc. of Specific Crimes, which punishs the act of forging or altering foreign currencies, paper money, or bank bills circulated in domestic countries for the purpose of exercising the rights, does not meet the legitimacy and balance of the criminal system in relation to Article 207(2) of the Criminal Act, and is contrary to the basic principles of the Constitution or the principle of equality (affirmative)

[1] Article 30 of the Criminal Act / [2] Article 298(1) of the Criminal Procedure Act, Article 142(1), (2), and (3) of the Regulation on Criminal Procedure / [3] Article 11(1) of the Constitution of the Republic of Korea, Article 207(2) of the Criminal Act, Article 10 of the Act on the Aggravated Punishment, etc. of Specific

[1] Supreme Court Decision 2008Do1274 Decided April 10, 2008 (Gong2008Sang, 708) Supreme Court Decision 2010Do6924 Decided September 9, 2010 (Gong2010Ha, 1960) / [2] Supreme Court Decision 2001Do1052 Decided April 24, 2001 (Gong2001Sang, 1302), Supreme Court Decision 2013Do5165 Decided July 12, 2013 (Gong2013Ha, 158) / [3] Constitutional Court en banc Decision 2014Hun-Ba24, 2014Hun-Ba11 Decided November 27, 2014 (Hun-Ga178)

Defendant 1 and four others

Defendants

Attorney Lee Han-ju et al.

Seoul High Court Decision 2014No1376, 2014No2596 decided October 16, 2014

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

1. Defendant 5's grounds of appeal on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), the violation of the Illegal Check Control Act, the use of forged securities, and the larceny are examined.

A. In a case where one of the competitors runs away from his/her competitive relationship before the other competitors reach the implementation thereof, he/she shall not be held liable as a co-principal with respect to the subsequent act of the contest. However, the renunciation in the competitive relationship is necessary to resolve the functional control over the functional act performed by the contest. As such, when the contest participated in the leading process of the contest and has an impact on the execution of another contest, he/she shall not be deemed to have deserted from the competitive relationship unless he/she has removed the influence on the implementation, such as actively endeavoring to prevent the crime, (see Supreme Court Decisions 2008Do1274, Apr. 10, 2008; 2010Do6924, Sept. 9, 2010, etc.).

For the reasons indicated in its holding, the lower court determined that Defendant 5 cannot be deemed to have escaped from the conspiracy of the instant check, the exercise of forged checks, and the conspiracy of fraud, and thus, it cannot be exempted from the criminal liability for the violation of the Control of Illegal Check Act, the exercise of forged securities, and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), and rejected the grounds for appeal of mistake of facts and misapprehension of legal doctrine

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court’s aforementioned determination is based on the legal doctrine as seen earlier, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine regarding the renunciation in the conspiracy of co-principal.

B. Article 142(3) of the Rules on Criminal Procedure provides that where an application for changes of a bill of indictment has been filed, the court shall immediately deliver its duplicate to the defendant or his/her defense counsel. Since it is apparent in the literal sense that both the defendant and his/her defense counsel do not have to deliver its duplicates, it cannot be deemed that there was procedural errors on the ground that the duplicate of the written application for changes of a bill of indictment was served only on one of the defendant and his/her defense counsel (see Supreme Court Decisions 2001Do1052, Apr. 24, 2001; 2013Do5165, Jul. 12, 2013

According to the records, prior to the second trial of the first instance court on December 19, 2013, the prosecutor submitted to Defendant 5 an application for permission to modify the indictment with respect to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), the violation of the Illegal Check Control Act, the exercise of forged securities and the charge of larceny. The defendant's defense counsel received a duplicate of the application for permission to modify the above indictment on December 23, 2013, and the first instance court served on the public defender on January 22, 2014 after the duplicate of the application for permission to modify the indictment was served on the public defender.

Therefore, the trial proceedings in the first instance court did not contain errors in the trial proceedings without delivering a copy of the application for changes in indictment submitted by the prosecutor as alleged in the grounds of appeal.

2. We examine the Defendants’ remaining grounds of appeal ex officio prior to determination.

Of the facts charged in the instant case, the lower court upheld the first instance judgment that convicted the Defendants by applying Article 10 of the Specific Crimes Aggravated Punishment Act and Article 207(2) of the Criminal Act to the charges of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Aggravated Punishment Act”) against the Defendants.

Of Article 10 of the Specific Crimes Aggravated Punishment Act, Article 207(2) of the Criminal Act (hereinafter “the Specific Crimes Aggravated Punishment Act”) provides that “a person who commits a crime under Article 207(2) of the Criminal Act (hereinafter “instant provision”) shall be punished with more severe penalty than the statutory penalty prescribed in the instant provision of the Criminal Act, namely, “a person who forges or alters foreign currencies, paper money, or bank bills distributed in Korea for the purpose of uttering” (hereinafter “the instant provision”). However, the instant provision of the Specific Crimes Aggravated Punishment Act does not completely add the elements of special aggravated elements than the elements prescribed in the instant provision of the Criminal Act, and only increases the statutory penalty without adding the elements of special aggravated elements, thereby causing confusion in the application of the Act, and further, the statutory penalty is imposed differently from the punishment of the instant provision of the Criminal Act, by adding a death penalty and adding a limited imprisonment to five times or more, and thus, is not in violation of the basic principle of equality and balance between the punishment system and the punishment system.

Therefore, in this case, prosecuted by applying the provisions of the Act on the Aggravated Punishment of Specific Crimes to the above charged facts which committed the crime falling under the provisions of the Criminal Act, the court below should have deliberated and judged whether the provisions of the Act on the Aggravated Punishment of Specific Crimes were unconstitutional or not, but without examining them, found the defendant guilty of violating the provisions of the Act on Aggravated Punishment of Specific Crimes as the charge of violating the provisions of the Act on the Aggravated Punishment of Specific Crimes and affected the conclusion of the judgment.

Accordingly, the part of the judgment of the court below on the violation of the Specific Crimes Aggravated Punishment Act against the Defendants should be reversed, and the above part was sentenced to a single punishment by the Defendant on the grounds that the court below convicted the Defendants of the remaining crimes and the concurrent crimes under the former part of Article 37 of the Criminal Act. Accordingly, the whole judgment of the court below should

3. Therefore, without examining the remaining grounds of appeal, we reverse the judgment below, and remand the case to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)