accomplices and attempted abandonments

In cases where an accomplice has not caused another accomplice to discontinue the crime, he/she may not be the attempted crime even if one of the accomplices withdraws the criminal intent.

Article 26 of the Criminal Act

Supreme Court Decision 68Do1676 Decided February 25, 1969 (Article 26(3) of the Criminal Act, Article 26(3) of the Criminal Act, Article 26(1)62 of the Criminal Act, Article 17(1)1-50

Defendant 1 and one other

Prosecutor and Defendants

Seoul Criminal Court of the first instance (84 Gohap1226, 85 Gohap198 (Joint Judgment))

Each judgment of the court below is reversed.

Defendant 1 is punished by imprisonment with prison labor for ten years and by imprisonment for two years and six months, respectively.

The number of days of detention prior to the declaration of the original judgment shall be 175 days and included in the above sentence.

One knife, two knife knife, two knife knife (Evidence 1 and 2) shall be confiscated from the Defendants.

1. Summary of grounds for appeal;

A. The grounds for appeal by the defendant and his defense counsel

First, on October 24, 1983, when the defendant talked with Non-Indicted 1, Non-Indicted 2 and Non-Indicted 3, there was a fact that Non-Indicted 2 and Non-Indicted 3 murdered Non-Indicted 1 in a knife. However, although the defendant did not participate in the above crime due to his collusion with Non-Indicted 2, etc. in advance, the court below acknowledged the fact that the defendant did not take part in the above crime, although he was never involved in Non-Indicted 1, Non-Indicted 2, etc., who was living in a knife with Non-Indicted 1, and returned to a different place after he conspiredd to kill Non-Indicted 1 with Non-Indicted 2, etc., who was living in the Chinese house of China near the defendant's house after he was sittinged with Non-Indicted 1.

In addition, on August 23, 1984, the defendant conspiredd with Non-Indicted 4 and Non-Indicted 5 to inflict injuries on Non-Indicted 5 in a knife at a blue hotel located in Gangnam-gu Seoul, Gangnam-gu, with Non-Indicted 4, etc., but it was difficult for the defendant to flife Non-Indicted 5, etc., and then flife Non-Indicted 5. However, although the defendant left the left knife with the wind of Non-Indicted 5, the court below found that the defendant conspiredd with Non-Indicted 4, etc. to kill Non-Indicted 5, etc., and then the defendant inflicted a knife on Non-Indicted 6

Second, in light of the fact that the defendant is in depth divided into the crime of this case and the degree of the defendant's participation in the process of killing non-indicted 1 is relatively insignificant, the sentence imposed by the court below is too unreasonable.

B. Grounds for appeal against the prosecutor's defendant 1

In light of the fact that the Defendant, who was punished several times as a violation of the Punishment of Violences, etc. Act, transferred the gambling board of a member in Seoul Special Metropolitan City, while committing various criminal acts, was faced with the situation where the Defendant’s her franchise, a criminal organization to which the Defendant belongs, suffered bodily injury and her franchise from his franchise in a long-term conflict with his franchisechise criminal investigation staff, the Defendant was faced with the situation where the Defendant’s her franchise will have the sovereignty deducted from her franchisecos, he was prepared with his franchise and knife under a prior franchise plan, and tried to kill Nonindicted 1 and 3 her franchise, who was the first flachise of the franchis, and then tried to kill him again by the same method after the lapse of 10 months, and there was no flue8s.

C. Reasons for appeal by the defendant 2 and his defense counsel

First, in order to receive the money that the Defendant lent to Lee Jong-hee on August 23, 1984, the Defendant was to receive from his hotel and received rice from him, but there was no conspiracy with him to kill Nonindicted 5, in advance. At the time of the instant case, the Defendant did not participate in the commission of the crime and did not participate in the commission of the crime at the time of the instant case before the news restaurant with 3,40 meters away from the scene. However, the lower court recognized that Defendant 1, etc. conspired with Defendant 1, etc. to kill Nonindicted 5, etc. along with Defendant 1, and had observed Nonindicted 5, etc. in the hotel entrance to prevent him from escape.

Secondly, the defendant, who is going at the entrance of a hotel, renounced his crime and went out of the hotel, and thus constitutes a suspended crime. However, the court below did not reduce or exempt the punishment.

In light of the fact that Sceh, the Defendant’s depth of this case, the degree of participation in this case’s crime is relatively minor, and the Defendant completed the execution of the crime causing rape on September 27, 1979 and had been actually engaged in working life until the time of this case, the punishment sentenced by the lower court is too unreasonable.

2. Determination on the grounds for the above appeal

A. First of all, we examine the defendants' assertion of mistake of facts, and examine the remaining evidences except for the statements made by the prosecutor's office of non-indicted 7, 8, and 9 from among the evidences lawfully examined and adopted by the court below, we can find the defendants' facts constituting each crime of the defendants as decided by the court below.

However, among the evidence adopted by the court below, each statement made by the prosecutor in the prosecutor's office of non-indicted 8 and 9 is unlawful since the defendant 1 consented to the admissibility of evidence in the court room and the court below admitted it as evidence.

In addition, Nonindicted 7’s statement at the prosecutor’s office was made by Defendant 1’s consent to use it as evidence in the court court, but the court below adopted and summoned as a witness, and it was revealed that the service of the summons was impossible and there was no room to confirm the location of the summons due to the withdrawal. Therefore, the court below made a written statement by drawing it as evidence in accordance with Article 314 of the Criminal Procedure Act.

However, since the writ of summons was served as a witness again at the trial, but the adoption of evidence was revoked without attendance at the joint market, it cannot be said that the statement of Nonindicted 7 at the prosecution is admissible as evidence in the trial.

However, it is sufficient to recognize facts at the time of original adjudication even based on the remaining evidence other than them.

B. Following Defendant 2’s assertion of attempted discontinuance cannot be seen as a attempted discontinuance even if one of the accomplices withdraws from the criminal intent, unless he/she had the other accomplices discontinue the crime (see Supreme Court Decision 196Do1676, Feb. 25, 1969; Supreme Court Decision 68Do1676, Feb. 25, 196).

C. Finally, taking into account the various circumstances as to the sentencing of the Defendants, taking into account the health care of the Defendants, and whether the sentencing conditions indicated in the instant case are attached to the sentencing, the lower court deemed that the sentence imposed on the Defendants is too unreasonable, and thus, the Defendants’ appeal is reasonable, while the Prosecutor’s appeal against Defendant 1 is groundless.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the following is ruled again after pleading.

The gist of the defendants' criminal facts and evidence admitted as a party member is the same as that of the judgment of the court below, except for the exclusion of the statement written by the prosecutor as to the non-indicted 7, 8, and 9 from the summary of the evidence. Thus, it is cited by Article 369 of the same Act.

Of the so-called "Defendant 1" decision of each of the defendants, the so-called "Defendant 1" decision of each of the defendants is set forth in Articles 250 (1) and 30 of the Criminal Code, and the two-called "the defendants' decision" of each of them falls under either of Articles 254, 250 (1), and 30 of the Criminal Code or of Articles 250 (1), 250 (1),

Since each of the above offenses committed by the Defendants is concurrent crimes under the former part of Article 37 of the same Act, according to Articles 38 (1) 2 and 50 (3) of the same Act, Defendant 1 shall be subject to the penalty provided for in the most serious offense committed against the Defendant 1, and the punishment provided for in the most serious offense against Defendant 2 shall be subject to concurrent crimes committed against Nonindicted 6, as stated in the judgment of the most severe offense.

As seen above, Defendant 2 is subject to discretionary mitigation according to Articles 53 and 55(1)3 of the same Act, since there are reasons to take into account the circumstances.

Defendant 1 within the scope of each term of punishment above shall be punished by imprisonment for ten years, and imprisonment for two years and six months, respectively.

Article 57 of the same Act shall include 175 days of detention prior to the pronouncement of the original judgment in each such sentence.

The seized one knife and one other (No. 1 and No. 2) are things provided or intended to be provided for the crimes of the Defendants as indicated in the judgment of the Defendants, and do not belong to the possession of a person other than the criminals, so they shall be confiscated from the Defendants pursuant to Article 48 (1) 1 of the same Act.

It is so decided as per Disposition for the above reasons.

Judges Kim Sung-il (Presiding Judge)