Where an offender requests another person to help the criminal to escape constitutes a crime of aiding and abetting the criminal, the criteria for determining whether the criminal has abused his/her right of defense.

Since a criminal's act of escaping himself/herself is not subject to punishment, the act that the criminal requests another person to help the criminal for escape is not subject to punishment, and the same applies to the case where another person's act of aiding and abetting the criminal in response to the criminal's request constitutes a crime of aiding and abetting the criminal. However, if it can be viewed as an abuse of his/her right of defense, such as the case where the criminal makes another person make a false confession, etc., and thereby it constitutes an abuse of his/her right of defense, it may constitute a crime of aiding and abetting the criminal. In such cases, whether it can be viewed as an abuse of right of defense shall be determined by taking into account the aspects and contents of the act designated as an act of aiding and abetting the criminal, relationship between the criminal

Articles 31 and 151 of the Criminal Act

[Plaintiff-Appellant] 200Do20 decided Mar. 24, 2000 (Gong2000Sang, 1106)

Defendant

Defendant

Attorney Lee Jae-il

Cheongju District Court Decision 2013No162, 367, 670 decided September 12, 2013

The judgment of the court below is reversed, and the case is remanded to Cheongju District Court Panel Division.

The grounds of appeal are examined.

1. In the crime of aiding and abetting a criminal under Article 151 of the Criminal Act, "the act of aiding and abetting a criminal" refers to any act other than concealment which makes it difficult or impossible to act as a criminal justice such as investigation, trial, execution of a sentence, etc. (see Supreme Court Decision 2007Do1137, Dec. 24, 2008, etc.).

Meanwhile, since the act of a criminal to escape by himself is not punishable, the act of a criminal requesting assistance to another person is not punishable, and the act of a third person's aiding and abetting the criminal in response to the request of the criminal constitutes the crime of aiding and abetting the criminal. However, if it can be viewed as an abuse of his right of defense, such as the case where a criminal makes another person make a false confession, etc., the act of aiding and abetting the criminal may constitute the crime of aiding and abetting the criminal (see, e.g., Supreme Court Decision 2000Do20, Mar. 24, 200). Whether it can be viewed as an abuse of right of defense in this case should be determined by taking into account the attitude and contents of the act identified as an abuse of right of defense, the relation between the criminal and the offender, specific situation at the time of the act, and the degree of risk that may affect the criminal justice.

2. Of the facts charged in the instant case, the lower court convicted the Nonindicted Party of the charge that the Defendant, who had committed a crime corresponding to the fine or heavier punishment at the time and escaped, had the Nonindicted Party move the Nonindicted Party to the destination desired by using a motor vehicle, or requested the Nonindicted Party to seek a “sonphone” by asking for an “sonphone,” thereby having the Nonindicted Party comply with the Defendant

3. However, the lower court’s determination is difficult to accept.

The following circumstances acknowledged by the evidence duly admitted by the court below, i.e., the Nonindicted Party: (a) the Defendant was close to a usual place; (b) the Defendant was asked from the Nonindicted Party on the ground that his cell phone might be located at the time of using his cell phone; (c) the Nonindicted Party opened a cellphone on the demand of the Nonindicted Party; and (d) allowed the Nonindicted Party to leave the phone to his seat; and (c) the Nonindicted Party did not move from the vehicle driven by the Nonindicted Party on the Cheongju-si-si-si-si-si-si-si-si-si-si-si-to-si-

Nevertheless, the lower court found the Defendant guilty solely on the ground that the Nonindicted Party’s act of capital flight was recognized. In so doing, the lower court erred by misapprehending the legal doctrine on the requirements for establishing the crime of capital flight, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

4. Therefore, the part of the judgment of the court below as to aiding and abetting a criminal escape should be reversed. Since the court below rendered a single sentence in relation to concurrent crimes with the remaining parts found guilty and the former part of Article 37 of the Criminal Act, the judgment of the court below cannot avoid the whole reversal

5. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)