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The judgment of the court below is reversed.
Defendant
A Imprisonment with prison labor of one year and four months, and Defendant B shall be punished by a fine of five million won.
Reasons
1. Summary of grounds for appeal;
A. The sentence of the lower court against Defendant A (one year and six months of imprisonment) is too unreasonable.
B. Defendant B (1) misunderstanding of the facts or misapprehension of the legal doctrine, thereby aiding and abetting a joint Defendant A to commit a fraud against a victim, and not soliciting the victim to commit a fraud, it is unreasonable to erase the principal offender’s liability as a joint principal offender.
(2) The sentence of the lower court’s unfair sentencing (one hundred months of imprisonment, two years of suspended sentence) is too unreasonable.
2. Determination
A. Prior to the judgment on the grounds of appeal by Defendant A regarding the assertion by Defendant A, the lower court determined Defendant A and Defendant B as a joint principal offender in the crime of fraud as stated in the judgment of the lower court, but as mentioned thereafter, it is reasonable to view that the Defendants are not the joint principal offender in the crime of fraud, but the Defendants aiding and abetting Defendant A to commit the crime of fraud. As such, the part of the lower judgment regarding Defendant A cannot be maintained.
B. In order for a joint principal offender to be established under Article 30 of the Criminal Act to determine the misunderstanding of the facts or the legal doctrine of Defendant B, it is necessary to implement a crime through functional control based on the joint doctor. Here, the intent of joint processing is insufficient to recognize another person’s crime and to accept it without restraint. The purpose of joint processing is to shift one’s own intention by using another person’s act to implement a specific criminal act as a joint intent (see, e.g., Supreme Court Decision 2002Do747, Mar. 28, 2003). Meanwhile, the essence of joint principal offender is a functional control by division of occupational roles.
As a result, the common principal is a functional control by the common will, while the principal is not controlled by the common will.