[1] The meaning of "activities" as a member of a crime organization or group under Article 4 (1) of the Punishment of Violences, etc. Act and the standard for determining whether such "activities" are applicable

[2] The case holding that the defendants' act of being ordered by the higher members of the criminal organization to keep the organization's deceptive scheme well-being and to keep the organization's deceptive scheme well-known does not constitute "activities" as members of the criminal organization under Article 4 (1) of the Punishment of Violences, etc. Act

[1] In full view of the contents, form, legislative purport, type and degree of punishment, etc. of Article 4(1) of the Punishment of Violences, etc. Act, the term “activities” under Article 4(1) of the same Act means active activities aiming at the continuation and maintenance of a crime group or group, which are conducted by a collective decision-making in accordance with the internal discipline and the system of command, and collective decision-making, and the degree of contribution corresponding to those stipulated in paragraphs (3) and (4) of the same Article. Whether a specific act constitutes “activities” as a member of a crime group or group ought to be determined practically by taking into account the specific circumstances such as the date and time, place and contents of the act in question, the motive and purpose of the act in question, the relation between the person who made the decision-making and the offender, and the process of delivery of the intent. Therefore, even if multiple members participate, it is not a collective decision-making, or a collective decision-making with intent to attend a meeting or a meeting of superior members such as the number of crime group or group.

[2] The case holding that the defendants' act of receiving instructions from the upper members of the criminal organization to keep the organization's deceptive scheme well and to keep the organization's deceptive scheme well shall not be deemed to constitute "act" as a member of the criminal organization under Article 4 (1) of the Punishment of Violences, etc. Act on the grounds that the defendants' act was merely a victim of assault under passive instructions or orders from the upper members and cannot be viewed as an act of contributing to the continuation and maintenance of the criminal organization

[1] Article 4 (1) of the Punishment of Violences, etc. Act / [2] Article 4 (1) of the Punishment of Violences, etc. Act

[1] Supreme Court Decision 2008Do1857 Decided May 29, 2008

Defendant 1 and 11 others

Defendants

Attorneys half-Hun-Ba et al.

Daejeon High Court Decision 2008No238 decided October 15, 2008

The part of the lower judgment against Defendant 11,12 is reversed, and that part of the case is remanded to Daejeon High Court. Of the lower judgment, the part pertaining to the inclusion of Defendant 3,7,9, and 10 in the calculation of the number of detention days before the judgment on Defendant 3,7,9, and 10 is reversed. The remaining appeals by Defendants 3, 7, 9, and 10 and all appeals by the remaining

1. The grounds of appeal are examined.

A. As to the appeal by Defendant 1, 4, 5, 6, 7, 9, 11, and 12

(1) As to the activity of a criminal organization

(A) Article 4(1) of the Punishment of Violences, etc. Act (hereinafter only referred to as the “Act”) provides that “any person who forms an organization or group aimed at committing a crime prescribed in this Act or joins such an organization or group or acts as a member thereof shall be punished by the following: 1. leader shall be punished by death or imprisonment with prison labor for life or for not less than 10 years; 2. Executive officers shall be punished by imprisonment with prison labor for not less than 7 years; 3. Other persons shall be punished by imprisonment with prison labor for not less than 2 years.” The legal provision of this case provides that “The degree of social harm and injury caused by a crime planned and organized by a criminal organization or group is more serious than that of an individual, and that the risk of carrying out or carrying out a crime continues, regardless of whether or not the crime is committed, the legislative intent of this case is to prevent the creation and continuation of such an organization or group, which has the nature of the crime, regardless of whether the crime is committed, and thus, it cannot be punished even if it is somewhat unreasonable in light of the legislative intent purpose of this case’s.

However, Article 4 of the Punishment of Violences, etc. Act separately provides a penal provision for specific activities separate from the legal provision of this case for punishing members of a crime organization. Article 4(2) of the same Act provides that where a person who constitutes or joins a crime organization or group renders undue influence on a crime organization or group, or commits a specific crime to continue to exist or maintain a crime organization or group, punishment shall be aggravated than that provided for in such crime. Article 4(3) of the same Act requires others to join a crime organization or group, or solicits others to join a crime under Article 4(4) of the same Act. In full view of the contents and form of the provision of Article 4 of the Punishment of Violences, etc. Act, legislative intent, type and degree of punishment, etc., the term "activities" in Article 4(1) of the Punishment of Violences, etc. Act means that an act of participating in a specific crime or group or group oriented act, such as holding of a specific criminal organization or group or group oriented act, the act of participating in such act cannot be seen as an act of expression or group oriented act, etc.

(B) The point of activities of the criminal groups in Schlage, Ssch Rexroth and Scour Park;

The court below held that the act of Defendant 11 and 12, along with other subordinate members, committed by Defendant 12, who was ordered to well control the so-called so-called so-called “inbound” with the order to well observe the organization’s deceptive scheme by the upper members of the crime group, also constituted the act of Defendant 12 as a member under Article 4(1) of the Punishment of Violences, etc. Act.

In light of the above legal principles, Defendant 11 and 12's act is merely merely a person who was assaulted under a passive instruction or order from a superior member, and cannot be deemed as having committed an act to contribute to the existence and maintenance of a criminal organization. Therefore, it cannot be deemed that there was an act as a member of a criminal organization. Therefore, Defendant 11 and 12's ground of appeal pointing this out has merit

(c)the activity of any other criminal organization;

After compiling the evidences, the court below acknowledged the circumstances as stated in its holding, and determined that the Defendants’ acts in the dry field park, the Park Park Park and the Gamball Park Park Park, and the Gamball Park Park Park, were the activities of members for the continuation, maintenance, and strengthening of the "Yara sama" or the "Mara sama", which is a criminal organization. Such determination by the court below is justifiable in light of the above legal principles. There is no error of law such as misunderstanding

(2) Defendant 1, 4, 5, 6, 7, and 9’s assertion of unreasonable sentencing

In this case where the above defendants are sentenced to the suspension of the execution of imprisonment or imprisonment with prison labor for less than 10 years, and the order of community service and probation, the reasons why the sentence of the court below is too inappropriate is not a legitimate ground for appeal.

(3) The remaining grounds of appeal by Defendant 1, 4, 5, 6, 7, 9, 11, and 12 are all grounds of appeal, which are nothing but grounds of appeal for the selection of evidences and fact-finding which belong to the exclusive jurisdiction of the lower court, and they do not constitute legitimate grounds of appeal.

B. As to the appeal by Defendant 2, 3, 8, and 10

The court of final appeal may investigate and determine only to the extent of appeal filed based on the grounds of final appeal. As such, the grounds of final appeal clearly state specific grounds for appeal as to which part of the judgment of the court below is in violation of the law, and the defendant's grounds of final appeal stating that " there exists a ground of final appeal for violation of law, such as mistake of facts and misapprehension of legal principles in the judgment of the court of final appeal" merely did not assert any specific grounds for appeal as to certain evidence, as it does not indicate any error in the rules of evidence or in the application of any Act and subordinate statute, and any unjustifiable ground for appeal is unreasonable (see, e.g., Supreme Court Decisions 9Do513, Apr. 21, 200; 201Do6750, Feb. 26, 2002).

According to the records, the above Defendants did not submit the appellate brief within the submission period, and each of the appeals filed by Defendants 2, 8, and 10 did not state the grounds for appeal at all, and Defendant 3’s petition of appeal stated that “legal scenarios and violations of laws and regulations are committed,” and it cannot be deemed that the legitimate grounds for appeal have been submitted on the ground that there was no specific grounds for appeal.

2. Ex officio determination

According to the records, the court below dismissed each appeal filed by Defendant 3, 7, 9, and 10, and included all or part of the detention days prior to the imposition of judgment in the imprisonment, imprisonment without prison labor, fine or minor fine, or penal detention pursuant to Article 57(1) of the Criminal Act, the court below included each part of the detention days prior to the imposition of judgment in the punishment for the above Defendants, which was sentenced by the court of first instance.

However, the Constitutional Court declared that Article 57 (1) of the Criminal Act is unconstitutional (the Constitutional Court Order 2007Hun-Ba25 delivered on June 25, 2009). Accordingly, the decision of the court below, which included only a part of the detention days prior to the pronouncement of the judgment of the court below, cannot be maintained.

3. Conclusion

Therefore, the part of the judgment of the court below against Defendant 11 and 12 is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. Of the judgment below, the part concerning the calculation of the number of detention days before the judgment on Defendant 3, 7, 9, and 10 is reversed, and this court shall directly render a decision pursuant to Article 396 of the Criminal Procedure Act, but since the number of detention days before the judgment is rendered is naturally included in the original sentence, it shall not be separately determined by judgment as to the inclusion of the number of detention days after the appeal, and all appeals by Defendant 3, 7, 9, and 10 against the remaining judgment of the court below and the appeal by the remaining defendants are dismissed. It is so decided as per Disposition by the assent of all participating Justices on

Justices Park Si-hwan (Presiding Justice)