[1] Whether aiding and abetting under the Criminal Code is established by omission (affirmative)

[2] The requirements for recognition of a crime of omission under the Criminal Code

[3] Whether aiding and abetting the violation of the Trademark Act and the Unfair Competition Prevention Act are established by omitting employees of the department stores with knowledge of the sale of counterfeit trademark attached to the department stores (affirmative)

[1] An act of aiding and abetting under the Criminal Code refers to all direct and indirect acts that facilitate the principal offender's practice, and is also established by omission as well as by commission.

[2] For the purpose of recognition of a crime of omission under the Criminal Act, if a person who is legally obligated to act to prevent the occurrence of a result of infringement of legal interests prohibited by the Criminal Act, fails to perform the duty by allowing and neglecting the occurrence of the result, even though he/she could easily prevent the occurrence of the result by performing the duty, if the omission has the value equivalent to that of infringement of legal interests by the act, and thus, is deemed as an act of commission of the crime, it may be punished as a crime of omission in the same way as that by the act of commission.

[3] The employees in charge of the management of goods related to a specific store and confirmation of customer's complaints by assisting the operator in the department store shall not neglect the customer's purchase if he/she finds the fact that the fake trademark is displayed and sold at the store of the specific store under his/her control. However, even though he/she knows such fact, he/she has an obligation under the labor contract and the doctrine to immediately demand correction and report it to the employee and correct it to the superior, it shall be deemed that the fact that he/she did not demand corrective measures or report it to the occupant, etc. even though he/she knows such fact, leaving the occupant to continue selling the fake trademark to the customers by his/her act is equivalent to that that of facilitating the violation of the Trademark Act and the Unfair Competition Prevention Act. Thus, the defendant who is the employee in charge of the department store can be recognized as aiding and abetting the act in violation of the Trademark Act and the Unfair Competition Prevention Act as co-defendant.

[1] Articles 18 and 32 of the Criminal Act / [2] Article 18 of the Criminal Act / [3] Article 93 of the Trademark Act, Article 2 subparagraph 1 of the Unfair Competition Prevention Act, Article 18 (1) 1 of the Unfair Competition Prevention Act, Articles 18 and 32 of the Criminal Act

[1] [2] Supreme Court Decision 95Do2551 delivered on September 6, 1996 (Gong1996Ha, 3069) / [1] Supreme Court Decision 84Do1906 delivered on November 27, 1984 (Gong1985, 105) Supreme Court Decision 85Do1906 delivered on November 26, 1985 (Gong1986, 175), Supreme Court Decision 86Do198 delivered on December 9, 198 (Gong1987, 178), Supreme Court Decision 95Do456 delivered on September 29, 195 (Gong195Ha, 3652) / [2] Supreme Court Decision 95Do1971 delivered on February 11, 1992 (Gong195Do197529 delivered on December 195)

Defendant 1 and one other

Defendants

Law Firm Dom General Law Office, Attorneys Labor Freeboard et al.

Seoul District Court Decision 95No5598 delivered on June 14, 1996

All appeals are dismissed.

1. Defendant 1’s grounds of appeal are examined.

Considering the form and contents of the protocol of examination of the defendant 1 prepared by the public prosecutor, the career and occupation of the above defendant and all the circumstances shown in the records, it cannot be deemed that there are circumstances to suspect that the above defendant's statement in the prosecutor's office appears to be voluntary statements and that there is no voluntariness like the theory of lawsuit. In addition, according to the records, the employment evidence of the court of first instance cited by the court below, it is clear that all of the evidence of the court of first instance is admissible through legitimate evidence examination. According to the above evidence, the facts constituting the above defendant can be sufficiently recognized. Thus, the court below did not err by misapprehending the legal principles as to the illegality of finding facts against the rules of evidence or the admissibility of evidence

2. Defendant 2's grounds of appeal are examined.

A. In light of the records, the court below's rejection of the defendant's assertion that the interrogation protocol prepared by the prosecutor against the defendant 2 on the ground that it is not admissible as evidence because it is not voluntary, and in full view of the above evidence and other evidences employed by the court below, the above defendant's above defendant's dismissal of the defendant's assertion is justified, and in light of the above evidence and other evidences, it cannot be said that the court below erred by misapprehending the legal principles on the illegality or admissibility of evidence recognized as erroneous facts by judging evidence contrary to logical and empirical rules, as in the judgment of the court below, and in miscellaneous store operated by co-defendant 1, it is operated by Co-defendant 1, thereby preventing the sale of a fake click (CALVINK), Skn(DKN), DKnn(GUS) from being aware of the sale of a trademark, or reporting it to its superior, and thus, it cannot be said that the court below erred by misapprehending the legal principles on the illegality or admissibility of evidence.

B. However, an act of aiding and abetting under the Criminal Act refers to all direct and indirect acts that facilitate the principal offender's implementation, and it is established not only by a commission but also by omission (see Supreme Court Decision 84Do1906, Nov. 27, 1984; Supreme Court Decision 85Do1906, Nov. 26, 1985; Supreme Court Decision 95Do456, Sept. 29, 1995; etc.). In order to recognize an omission under the Criminal Act, if a person who is legally obligated to prevent infringement of legal interests prohibited under the Criminal Act, fails to perform his/her duty by allowing and neglecting the occurrence of the result despite the fact that it could have easily prevented the occurrence of infringement of legal interests by performing his/her duty, if the omission has an equivalent value to infringement of legal interests by the commission, and thus, can be evaluated as an act of implementation of the crime, it shall be punished as an act of omission under the Criminal Act (see, e.g., Supreme Court Decision 96Do295, Feb. 195, 196.).

According to the records on this case, if Co-Defendant 1 did not request the above-mentioned stores to display and sell all products to their employees and their shop occupants, and if the above-mentioned stores were to sell them, the above products are to be handled in principle after inspecting the quantity and quality of the products in the product management division (with the name, price and bar code indicated). However, if the specific store occupants supply a large quantity of products at one time, the above products are to be inspected in the form of sample inspection by attaching them in advance from the shop occupants or attaching them to the samples to the shop occupants, and if the above products are not carried out by Co-Defendant 2, the above products are not carried out by the shop occupants, and the product management is to be carried out mainly by the shop occupants for the products of this case. On the other hand, whether Co-Defendant 1’s products are in charge of the management of the products of this case after signing the contract and managing the products of this case, it is also necessary to find out the fact that Co-Defendant 2’s new products are in charge of the management of the products.

In addition, there is no reason to affect the establishment of the crime of aiding and abetting in violation of the Trademark Act and the crime of aiding and abetting in violation of the Unfair Competition Prevention Act on the ground that Defendant 2 did not participate in Co-Defendant 1's specific store sales contract of this case, or did not know the circumstances before it was displayed and sold in the department store miscellaneous store, or that there was no personal friendly relationship between the above Defendants, or there was no monetary quid pro quo relationship with the above Defendants in relation to the crime of this case.

Therefore, the court below is justified in punishing Defendant 2 as a crime of aiding and abetting the violation of the Trademark Act and aiding and abetting the violation of the Unfair Competition Prevention Act, and there is no error in the misapprehension of legal principles as to the crime of aiding and abetting the above acts, and there is no ground for appeal pointing this out.

3. Therefore, all appeals by the Defendants are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Chocheon-sung (Presiding Justice)