The meaning of conspiracy or conspiracy as a subjective requirement for a joint crime

Article 334(2) of the Criminal Code provides that "competence" must be subject to public offering as a subjective requirement and sharing of the commission of crime at the scene of crime as an objective requirement. However, the public offering or conspiracy does not necessarily require prior consultation or conspiracy, but it also includes deliberation through implied deliberation at the scene of crime.

Article 334 of the Criminal Act

Supreme Court Decision 81Da2159 Delivered on September 8, 1981

Defendant 1 and one other

Defendants

Attorney Cho Young-young, Hun-man

Seoul High Court Decision 88No1453 delivered on July 14, 1988

The appeal is dismissed.

70 days in detention before and after an appeal is rendered shall be included in the penalty of the original judgment.

1. As to the grounds of appeal by Defendant 1 and his defense counsel

Examining the conditions of sentencing as shown in the instant case, the lower court’s sentencing cannot be deemed appropriate and excessive, and thus, the theory of litigation cannot be accepted.

2. As to Defendant 2’s ground of appeal

According to the evidence indicated in the judgment of the court of first instance, since it can be sufficiently recognized that the defendant committed the crime indicated in the same judgment, the court below's rejection of the defendant's assertion of mistake of facts cannot be said to be justified and erroneous in the rules of evidence.

In addition, the reason that the sentencing is excessive in this case where the defendant is sentenced to imprisonment less than 10 years cannot be a legitimate ground for appeal.

3. As to the grounds of appeal by the defense counsel,

(1) The court below's approval of the habitual nature of the same crime by taking advantage of Defendant 1's robbery at the time of robbery at a short time shall be justified and there is no violation of law by misapprehending the legal principles on habitual offenders. Furthermore, the court below's punishment against the defendant shall not be deemed as being too excessive. The same is already determined as above.

(2) Since the facts found by Defendant 1 and 2 together with the Defendants who appeared in the judgment of the court of first instance are apparent in the records, the fact finding by the court below is justified and there is no error in its determination.

(3) The phrase “competing” under Article 334(2) of the Criminal Act refers to a case where there is a conspiracy as a subjective requirement and an objective requirement, and there is a sharing of the commission of a crime at the scene of the crime (see Supreme Court Decision 81Da2159 delivered on September 8, 1981).

In the case of the joint crime like this, the conspiracy or conspiracy as a subjective element does not necessarily require it to be done in advance, but it also includes the idea of implied intent at the scene of the crime, and since the crimes of the above (2) fall under the case immediately, it is proper for the court below to judge the so-called guilty of the defendants, the court below did not err by misapprehending the legal principles of the joint crime such as the theory of lawsuit.

4. Ultimately, the arguments are without merit, and the defendants' appeals are dismissed, and part of the days of pre-trial detention after the appeal is included in the original sentence of the original judgment. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-ju (Presiding Justice)