All appeals filed by prosecutors and Defendant A shall be dismissed.

1. Summary of grounds for appeal;

A. The judgment of the court below which did not recognize that there was a misunderstanding of the facts as to the portion of the crime committed by the prosecutor (1) or misunderstanding of the legal principles, or a misunderstanding of the legal principles, or a functional control over the crime committed by the Defendants, but did not recognize it.

(2) Each sentence (Defendant A: 1 year and 6 months of imprisonment; 2 years of suspended execution; 80 hours of community service, observation of protection, Defendant B: imprisonment with prison labor, 1 year of suspended execution, 2 years of community service, 80 hours of suspended execution) against the Defendants are deemed to be too uneasy and unfair.

B. Defendant A (misunderstanding of the facts about aiding and abetting fraud or misunderstanding of the legal principles) was not aware that his act was related to smoking, and even if he did not have any intention to aid and abetting fraud, the lower court found the Defendant guilty. In so doing, the lower court erred by misapprehending the legal principles on mistake of facts or aiding and abetting fraud.

2. Determination

A. Determination as to the prosecutor’s assertion of misunderstanding the facts or misapprehension of the legal principles (1) of the Criminal Act as to the joint principal offender under Article 30 of the Criminal Act is a crime jointly committed by two or more persons. In order for a joint principal offender to be established, it is necessary to have committed a crime through functional control over a functional act based on a joint doctor as a subjective element. The intention of joint process is insufficient to recognize another person’s crime and to deny it without restraint. It is insufficient to say that the joint principal offender’s intent is integrated to commit a specific criminal act with another person’s intention and to shift to one’s execution by using another’s act (see, e.g., Supreme Court Decision 200Do576, Apr. 7, 200). Furthermore, the essence of the joint principal offender is functional control by division of occupational roles.

Since the common principal is a functional control by a common doctor, it is distinguished between the two in that there is no control over the conduct (Supreme Court Decision 2012Do129 Decided January 10, 2013).