[1] The elements for establishing a crime of abandonment of duty

[2] The degree of probative value of evidence to acknowledge guilty in a criminal trial

[3] Whether a criminal suspect who is investigated by an investigative agency's act of making a false statement as the actual owner of business even though he/she is an employee such as a game room, amusement room, or scamb (negative in principle)

[4] In a case where the victim has already passed a resolution to commit a crime, whether the principal of the crime is established (negative)

[1] Article 122 of the Criminal Code / [2] Articles 307 and 308 of the Criminal Procedure Act / [3] Article 151 of the Criminal Code / [4] Article 31 of the Criminal Code

[1] Supreme Court Decision 96Do2753 Decided April 11, 1997 (Gong1997Sang, 1510), Supreme Court Decision 97Do675 Decided August 29, 1997 (Gong1997Ha, 2983), Supreme Court Decision 2006Do1390 Decided July 12, 2007 (Gong2007Ha, 1309) / [2] Supreme Court Decision 2009Do1151 Decided July 22, 2010 (Gong2010Ha, 1689), Supreme Court en banc Decision 2008Do119 Decided January 20, 201 (Gong209Sang, 1689), Supreme Court Decision 2009Do4109 Decided April 29, 2018 (Gong20194, April 209, 201)

Defendant

Prosecutor

Law Firm International Law Firm, Attorneys Shin Jae-soo et al.

Busan District Court Decision 2010No1504 Decided September 29, 2010

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal on the waiver of duty

The crime of abandonment of duties is not established in all cases where a public official neglects his/her abstract duty by law, internal rule, etc., but is established only in cases where there is a specific risk of undermining the function of the State, causing damage to the people, and where there is a high degree of illegality and responsibility. Thus, in any form, if a public official performs his/her duties with his/her intent to perform his/her duties, the crime of abandonment of duties is not established on the sole basis of the fact that the contents of his/her performance of duties are deemed illegal (see Supreme Court Decision 2006Do1390, Jul. 12, 2007, etc.). It does not constitute a crime of abandonment of duties even in cases where a public official fails to perform his/her duties faithfully due to his/her negligence, negligence, mistake, etc. or fails to perform his/her duties faithfully or because of his/her negligence (see Supreme Court Decision 97Do675, Aug. 29, 197, etc.).

In light of the above legal principles and records, the court below is just in holding that the evidence submitted by the prosecutor alone for reasons as stated in its holding does not constitute a crime of abandonment of duties, even if the defendant does not control the illegal business of the game of this case promptly and appropriately, since it clearly recognizes the illegal business activities of the game of this case from October 6, 2008 to December 8, 2008, such as providing the customers with an altered fran game machine for the use of the game of this case, but it cannot be readily concluded that the defendant waivers his duties by not knowing such illegal business activities or requesting appraisal of the game of this case. Thus, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence or by misapprehending the legal principles as to the crime of abandonment of duties, etc. as alleged in the grounds of appeal.

2. As to the ground of appeal as to the aiding and abetting evidence concealment

The establishment of facts constituting a crime in a criminal trial ought to be based on strict evidence with probative value, which leads a judge to have such convictions as to the extent that there is no reasonable doubt. Thus, in a case where the prosecutor’s proof fails to sufficiently reach the extent that such convictions may lead to such convictions, the determination ought to be made in the interests of the defendant even if there is suspicion of guilts, such as the defendant’s assertion or defense is contradictory or uncomfortable (see Supreme Court Decision 2010Do1487, Apr. 28, 201).

Examining the reasoning of the judgment below in light of the records, the court below is justified to have determined that there was no proof of the crime and found the defendant not guilty of the above facts charged as to the facts charged that the defendant instigated Nonindicted 1 and 2 to conceal evidence in violation of the Game Industry Promotion Act by having others conceal evidence. Contrary to the allegations in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence in selecting evidence or recognizing facts.

3. As to the ground of appeal as to the aiding and abetting an offender

The fact that a suspect who is investigated by an investigative agency due to a violation of the Game Industry Promotion Act is not an actual owner of a game room, amusement room, or scam room, but a false statement was made by himself/herself as an actual owner of a business even though he/she was an employee, such act alone does not constitute a crime to escape a criminal. However, if the suspect makes a false statement on his/her own as an actual owner of a business, he/she does not constitute a crime to escape a criminal suspect, such as: (a) he/she will conceal the actual owner of the business and take charge of the role to be punished on his/her behalf (the so-called "scamby president"), and (b) simply makes a statement as an actual owner of a business; and (c) in the fact, he/she makes a false statement or false statement about the operation of the game room, the fund source, the process of purchasing the game machine, the process of concluding a lease contract for the store, etc.; and (d) if the investigative agency found it difficult or impossible to arrest the actual owner as a result, it can constitute a crime (see Supreme Court Decision 2009Do.

In addition, a teacher's crime is established when the principal offender has passed a resolution to commit the crime and the principal offender must pass a resolution to commit the crime by the teacher's negligence. Thus, if the principal offender has already passed a resolution to commit the crime, there is no room to establish the principal offender (see Supreme Court Decision 91Do542 delivered on May 14, 191).

In light of the above legal principles and the records, the court below held that there is no evidence of the crime against the charge that the defendant ordered the non-indicted 3 and the non-indicted 4, who is merely an owner of the business under the name of the non-indicted 3 and the non-indicted 4 to make a false statement as the actual owner of the business, and abetted the criminal defendant to escape from another person's criminal case. On the other hand, as long as the non-indicted 3 had already received a false statement from the non-indicted 5 and the non-indicted 4 from the non-indicted 3 and the non-indicted 4 to make a false statement, it is reasonable to find the defendant not guilty of the above charges. Contrary to the allegations in the grounds of appeal, the court below did not err by exceeding

4. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)