Defendant 1 and six others

Both parties

Song-jin

Attorneys Shin Young-chul et al.

Seoul Western District Court Decision 2010Ma1993 Decided June 1, 2011

All appeals filed by prosecutors and defendants are dismissed.

1. Summary of grounds for appeal;

A. Summary of the defendants' grounds for appeal

(1) misunderstanding of facts

Although the defendants systematically interfere with the search and seizure of the prosecutor's office and do not inflict an injury on the prosecutor and the prosecutor's officials, they do not have a passive and minor physical power, the judgment of the court below which found the defendants guilty of all the facts charged, is erroneous in the misapprehension of facts and affected the conclusion

(2) Legal principles

(A) First, the instant search and seizure cannot be deemed lawful performance of official duties, given that the prosecutor did not present a warrant properly in the course of conducting the search and seizure, and did not reveal the identity and position of the presenter of the warrant accurately.

(B) Second, the Defendants intended to exercise the right to participate in Article 123 of the Criminal Procedure Act by allowing the public prosecutor and the public prosecutor’s office to be exposed to the office, etc. under the direction of the relevant person. Since the public prosecutor and the public prosecutor’s office attempted to execute a warrant by deprived of such right to participate, the search and seizure of the instant case cannot be deemed lawful performance of official duties.

(3) Unreasonable sentencing

The sentence imposed by the court below against the defendants (the sentence imposed by the defendant 1, the imprisonment of August, the imprisonment of June, the imprisonment of June, the imprisonment of the defendant 3 and the imprisonment of June of each of the defendant 4) is excessively unreasonable.

B. Summary of prosecutor's grounds for appeal

The sentence of the court below is too unhued and unreasonable.

2. Determination:

A. Judgment on the defendants' assertion of mistake of facts

In light of the evidence duly adopted and examined by the court below, on September 16, 2010, at the ○○○ Group, the non-indicted 3 directors of the non-indicted 2 corporation, who are entrusted with the above building guard duties, ordered the defendant 1, who is the person in charge of the above building guard, to "on the ground that the prosecutor's staff would be assigned a search and seizure warrant, leading to the time". Accordingly, the defendant 1 collected expenses from the rest of the defendants, and trained the above instructions. On September 16, 2010, the prosecutor and investigators on the elevator direction in order to board the elevator with the first floor of the above building, the defendants were the non-indicted 4 and 5's arms, and the non-indicted 6's shoulder, and the non-indicted 7's secret investigator, and the defendant's active act was not interfered with the investigation and seizure of the above parts of the building, and the defendant's assertion that the above defendants did not interfere with the investigation and seizure of the above parts.

B. Judgment on the Defendants’ misapprehension of legal principles

(1) Judgment on the first misapprehension of the legal principle

Comprehensively taking account of the evidence duly adopted and examined by the court below, the prosecutor and investigators at the time of this case failed the identification card, and clearly notified them to the Defendants, the manager of the above building, that they were the investigation prosecutor and investigators of the above building. In particular, Nonindicted 8, who received the prosecutor’s order, stated that the search and seizure warrant should be executed in the presence of the Defendants, and that the search and seizure warrant should be carried out in the management planning office of the ○○ Group located in the above building for the investigation of the above non-funds case, and that the investigation prosecutor and investigators at the time of this case presented the search and seizure warrant lawfully. Thus, the above assertion is without merit.

(2) Judgment on the second misapprehension of the legal principle

Article 123(2) of the Criminal Procedure Act provides, “The execution of a warrant of seizure and search in the dwelling of a person other than those stipulated in the preceding paragraph (a public office, aircraft for military use, or election), or in the dwelling of a person guarded, or in the dwelling of a person guarded, building, airplane, or election, shall be required to have the dwelling owner, guard, or person acting for him/her participate.” Thus, the execution of a warrant of seizure and search is not only illegal but also illegal.

However, according to the evidence duly adopted and examined by the court below, the place where the crime in this case was committed is the first floor of the building of the ○○ Group Head Office, and the prosecutor and investigators at the time were on board the elevator to leave the room with at least two floors to execute the search and seizure warrant. According to the above facts, the prosecutor and investigators at the time of the crime in this case did not start the execution of the warrant because they did not arrive at the place to conduct the search and seizure. However, in executing the warrant at least two floors, it is not necessary to have the relevant staff attend the first floor to have them participate in the search and seizure warrant, and it is sufficient to have them participate in the search and seizure at the second floor, so the place of crime in this case is within the scope of the right to participate. Even if the expenses are deemed to be the place of search and seizure with the first floor above, as well as the employees including the Defendants included the guards and the Defendants around the search and seizure site, the Defendants also asserted that this part of the warrant was without merit.

C. Determination on the assertion of unfair sentencing by Defendants and prosecutors

On the other hand, the crime of this case was committed in full view of various circumstances, including the defendants' individual age, character and conduct, motive and means of the crime, circumstances after the crime, etc., which are favorable to the defendants, such as the fact that the crime of this case was committed in full view of the exercise of governmental authority, such as the execution of a search and seizure warrant, which is organized for the benefit of the company, is extremely poor, and thus, the defendants are contrary to all of the crimes of this case; the defendants deposited money for the victims of the bodily injury (per 1,00,000 won per victim); the defendants 4, 7, and 5 did not have any criminal history prior to the crime of this case; and the other defendants did not have any history of punishment prior to the crime of this case; and all other circumstances, which are the conditions for sentencing as shown in the records and arguments, are considered to be unfair because the court below's punishment is too weak or unreasonable. Thus, each of the above grounds for unfair sentencing are without merit.

3. Conclusion

Therefore, the appeal by the defendants and the prosecutor is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judge Lee In-bok (Presiding Judge)