Defendant 1 and two others

Defendant 1 and Prosecutor (as to the whole of the defendants)

Lee Jin-hun

Attorney Seo-cheon, et al.

Seoul Central District Court Decision 2011Gohap552 Decided August 26, 2011

The part of the judgment of the court below against the defendant 1 and 2 shall be reversed.

Defendant 1 shall be punished by imprisonment with prison labor for four years and by imprisonment for six months.

However, with respect to Defendant 2, the execution of the above sentence shall be suspended for one year from the date this judgment becomes final and conclusive.

Seized evidence 1 to 21 above shall be confiscated from Defendant 1.

The prosecutor's appeal against Defendant 3 (Defendant 2 of the Supreme Court's judgment) is dismissed.

1. Summary of grounds for appeal;

A. Defendant 1

1) misunderstanding of facts or misapprehension of legal principles

In light of the structure and power of the defendant's goods, the above goods constitute "other explosive goods" as stipulated in Article 172 (1) of the Criminal Act, not "explosion" as stipulated in Article 119 (1) of the Criminal Act, but "other explosive goods" as stipulated in Article 172 (1) of the Criminal Act, the court below's application of Article 119 (1) of the Criminal Act to the act

2) Unreasonable sentencing

The punishment of the court below (five years of imprisonment) is too unreasonable.

(b) Prosecutors;

1) misunderstanding of facts (as to Defendant 2 and 3)

A) Defendant 2

The following circumstances are as follows: (i) Defendant 1, who was unaware of at all prior to the instant crime, agreed to receive 30 million won for the transport of back bags from Defendant 1; (ii) Defendant 2 stated that Defendant 2 transported back bags, undermining illegal conduct; (iii) Defendant 2 avoided accurate answers despite Defendant 1’s commission of the instant crime; (iv) Defendant 2 was aware that the transport of back bags was related to the instant crime; (iii) Defendant 2 was able to have Defendant 1 prepare for women’s promen and promen; and (v) Defendant 2 knew or predicted that Defendant 1’s use of the aforementioned dangerous substance as a transport facility, and that it was difficult to recognize that Defendant 2’s use of the aforementioned dangerous substance was a large number of unspecified areas. However, the lower court’s determination that Defendant 2’s use of the dangerous substance, which could sufficiently affect the conclusion of the judgment, should be seen as an area where the air bags transport place was concentrated; and (v) Defendant 2 and Defendant 1’s use of the dangerous substance.

B) Defendant 3

The following circumstances are as follows: ① Defendant 3 was trying to borrow KRW 100 million from Defendant 1 as business fund and the time it purchased explosives parts are the same time; ② Defendant 3 was likely to participate in the crime in consideration of financial support; ② Defendant 3, when purchasing firecrackers, typiles, and exhausters, told Defendant 1 to “defincate”; ③ Defendant 3 introduced places where he purchased gascrackers, typiles, typiles, and typiles; ③ Defendant 3, upon Defendant 1’s request, introduced places where he purchased gascrackers, typiles, typiles, and typiles; ② Defendant 3 was aware of the fact that he could have known that he could have known that he could have known about the fact that he could have known about the fact that he could have known about the fact that he could have distributed explosives to Defendant 1, and ④ Defendant 1 was aware of the fact that he could have known about the fact that he could have distributed explosives to Defendant 1.

2) As to Defendant 1’s inappropriate sentencing (as to Defendant 1)

The sentence imposed by the court below against Defendant 1 is too unhued and unreasonable.

2. Determination:

A. Ex officio determination

We examine ex officio prior to the judgment on the grounds for appeal.

The Prosecutor reported to the Seoul High Court on the 2nd day of May 11, 201 that "No. 200 were in violation of the Railroad Safety Act" and "No. 3, Article 48 No. 48 of the Railroad Safety Act" to the 1st day of this Court. The Defendant reported to the Seoul High Court 2nd day of May 201 that "No. 1 was in violation of the provisions of the Act on Railroad Safety" to the 2nd day of this Court. The Defendant sent 2nd day to the Seoul High School and the Seoul High School, which was in violation of the provisions of the Act on Railroad Safety" to the 1st day of this Court. The Defendant was in violation of the provisions of the Act on the 2nd day of this Decree on the 2nd day of this Decree on the 1st day of this Decree on the 2nd day of this Decree on the 2nd day of this Decree on the 1st day of this Decree on the 1st day of this Decree on the 2nd day of this Decree on the 1st day of this Decree on the 1st day of this Decree on the 2nd day.

However, the prosecutor's above argument of misunderstanding the facts charged prior to the change is still subject to the judgment of this court, which will be examined below even if there is such ground for ex officio reversal.

B. As to Defendant 1’s assertion of mistake or misapprehension of legal principle

As to Defendant 1’s assertion identical to this part of the grounds for appeal, the lower court rejected the above assertion in full view of the circumstances as indicated in its reasoning. Examining the judgment of the lower court in light of the records, the lower court’s determination appears to be justifiable, and thus, Defendant 1’s assertion on this part is rejected.

C. Regarding the prosecutor's assertion of mistake

1) Defendant 2

Defendant 1 consistently stated that, before Defendant 2 puts a back a back door into Seoul Station and Gangnam High-speed Bus Terminal goods storage, there is sufficient possibility that Defendant 2 could not specifically explain the items contained in the back door to Defendant 2, which he first known for the crime of the instant case, to the effect that Defendant 1 could not have specifically explained the items contained in the back door. Defendant 2 was involved only in transporting a back door containing explosives and did not have any part of the act necessary for the manufacture of explosives. The circumstances asserted by the Prosecutor as the grounds for appeal can only be grounds for recognizing that Defendant 2 knew or predicted that the back door transport was involved in illegal or criminal acts, and all of them could not be readily concluded that Defendant 2 knew or predicted that the part of the materials contained in the back door was explosives, the lower court rejected the same part of the evidence presented by the Prosecutor on the ground that there was insufficient evidence to acknowledge that Defendant 2 was not a legitimate reason for appeal.

2) Defendant 3

In full view of the circumstances alleged by the Prosecutor as the reasons for appeal in this part, it is true that Defendant 3 is suspected that Defendant 1 would purchase materials necessary for the manufacture of explosives and would not facilitate Defendant 1’s crime.

However, Defendant 3 consistently stated that Defendant 1 was unaware of the manufacture of explosives, and Defendant 1 also stated that Defendant 3 would manufacture explosives upon request from the investigative agency to the court below for the purchase of materials necessary for the manufacture of explosives. Defendant 3 consistently stated that Defendant 1 would have known Defendant 3 of the fact that he would manufacture explosives by requesting the purchase of materials necessary for the manufacture of explosives from the investigative agency to the court below. The act of individual manufacture of explosives and explosion of explosives is not a type of crime that can be easily anticipated, but it is not easy to view that Defendant 3 could have connected the situation of purchase of strings and vapors that he could easily seek from the time when he bought explosives to Defendant 1 and ordinarily use them. In full view of the above, the evidence submitted by the prosecutor alone is insufficient to acknowledge that Defendant 3 knew or predicted that the materials purchased by Defendant 1 were used as materials for the manufacture of explosives, and there is no other evidence to acknowledge that this part of this part of the judgment below is justified.

D. As to Defendant 1 and Prosecutor’s argument of sentencing chief

In full view of the fact that Defendant 1 manufactured explosives, set up in Seoul Station, Gangnam-west bus terminal goods storage, and bombed, Defendant 1 committed the instant crime under a close plan to conceal the instant crime by using Defendant 3 and 2, etc. Defendant 1 appears to have obtained personal economic benefits by using social disorder and the price decline; Defendant 1 appears to have committed the instant crime through the instant crime; Defendant 1, the Seoul Station and Gangnam-west bus Terminal, which is a public concentrated place, was designated as a place to commit the instant crime; (b) caused confusion among unspecified citizens; (c) caused social anxiety; (d) caused confusion; and (d) caused a lot of collapse; and (d) Defendant 1 again committed the instant crime during a repeated period for which three months have not passed since having been sentenced to imprisonment for a special robbery; and (d) Defendant 1 committed the instant punishment against Defendant 1.

However, in full view of various sentencing conditions, including Defendant 1’s age, character and behavior, family environment, etc., the lower court’s punishment against Defendant 1 seems to be somewhat heavy in full view of the following: (a) there was no damage to human life except property damage, such as the fact that the power of explosion of the explosives in this case was not so significant; (b) there was little damage to the storage of goods; (c) Defendant 1 agreed smoothly with the person who suffered property damage; (d) Defendant 1 divided and reflected his criminal conduct; and (e) Defendant 1’s age, character

3. Conclusion

Therefore, the judgment of the court below against Defendant 2 is reversed pursuant to Article 364(2) and (6) of the Criminal Procedure Act, and since Defendant 1’s appeal is well-grounded, the part of the judgment below against Defendant 1 among the judgment below as to Defendant 1 among the judgment below pursuant to Article 364(6) of the Criminal Procedure Act is reversed, and it is again decided after pleading, and since the prosecutor’s appeal against Defendant 3 is without merit, it is dismissed pursuant to Article 364(4) of the Criminal Procedure Act.

이 법원이 인정하는 범죄사실 및 증거의 요지는 원심판결 범죄사실란에 피고인 2의 범죄사실로 위 2. 판단 가.항에 기재된 예비적 공소사실의 내용을 추가하고, 증거의 요지란에 피고인 2의 범죄사실에 대한 증거로 “1. 피고인 2의 이 법원에서의 법정 진술, 1. 검사 작성의 피고인 1에 대한 제2, 3회 피의자신문조서, 1. 검사 작성의 피고인 2에 대한 각 피의자신문조서, 1. 경찰 작성의 공소외 2, 3에 대한 각 진술조서, 1. 각 압수조서, 1. 각 수사보고(서울역 범행 현장 사진 첨부, 고속버스터미널 현장 사진 첨부, 사제푹발물 부품 구입처 수사 관련, 강남고속버스터미널 물품보관함 수리 견적 첨부 관련, 서울역 물품보관함 피해자 진술조서 및 견적서 관련, 화재현장 감식결과서 첨부)”를 추가하는 외에는 원심판결 각 해당란 기재와 같으므로 형사소송법 제369조 에 의하여 이를 인용한다.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Defendant 1: Article 119(1) of the Criminal Act and the choice of limited imprisonment

Defendant 2: Articles 78(2)3 and 48 subparag. 4 of the Railroad Safety Act, the choice of imprisonment

1. Aggravation for repeated crimes;

Defendant 1: The proviso to Article 35 and the proviso to Article 42 of the Criminal Act

1. Discretionary mitigation;

Defendant 1: Articles 53 and 55(1)3 of the Criminal Act ( considered as favorable circumstances among the grounds for reversal)

1. Suspension of execution;

Defendant 2: Article 62(1) of the Criminal Act (see, e.g., the charge of the instant crime in the form of an omission crime and the charge that has no particular record of committing a crime other than a single fine)

1. Confiscation;

Defendant 1: Article 48(1)1 of the Criminal Act

1. Summary of the facts charged

Defendant 2, despite being aware that Defendant 1 would use explosives in return for receiving KRW 30 million from Defendant 1, in order to assist Defendant 1, at each date, time, and place indicated in the lower judgment’s criminal facts, offered to Defendant 1, in an effort to prevent exposure to his status, and took the fryer, locked, locker, locker, shoes, shoes, shoes, and glass from Defendant 1, and aided and abetted Defendant 1’s crime of using explosives by inserting two glass containing explosives from Defendant 1 in front of the fymnasium in Yongsan-gu Seoul, Yongsan-gu, Seoul, and inserting two glass in front of the fymnasium, Yongsan-gu, Seoul, in order to facilitate such crime.

2. Determination:

As seen in the above 2. C. (1) of the judgment, the above facts charged constitute a case where there is no proof of crime and thus should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, but as long as the court found the defendant guilty of violating the Railroad Safety Act, which is the ancillary facts charged

Judges Ansan-jin (Presiding Judge)