Cases where punishment can be imposed as a co-principal for an offense under Article 2 (2) of the former Punishment of Violences, etc. Act.

Where more than two persons have conspired to commit any of the crimes listed in Article 2 (1) of the former Punishment of Violences, etc. Act (amended by Act No. 4294 of Dec. 31, 1990), and at least two persons have committed any of the crimes at the place of crime, they may be punished as a co-principal for the crime under Article 2 (2) of the same Act.

Article 30 of the Criminal Act, Articles 2(1) and 2(2) of the former Punishment of Violences, etc. Act

Supreme Court Decision 85Do119 delivered on June 10, 1986 (Gong1986,894) 88Do114 delivered on September 13, 1988 (Gong1988,1294) 90Do202 delivered on October 30, 1990 (Gong190,2488)

A and one other

Defendants and the Prosecutor (Defendant A)

Attorneys B and 3 others

Seoul High Court Decision 89No2635 delivered on December 15, 1993 93 93No2908 delivered on December 15, 1993

All appeals are dismissed.

With respect to Defendant C, 110 days of detention days after the appeal shall be included in the original sentence.

1. Prosecutor’s ground of appeal No. 1

The court below affirmed the judgment of the court of first instance which acquitted the defendant A of the facts that the defendant Gap, as the chief of D office, abused his official authority by allowing the non-indicted F and the non-indicted H, who is the minister of G, to designate and publicly announce the land 17,200m2 in Gangnam-gu Seoul, Seoul, which is the ownership of the non-indicted I Co., Ltd. as the site of the public office. The court below affirmed the judgment of the court of first instance which acquitted the above defendant of the facts charged. As to the facts that the above defendant violated the Presidential Security Office Act by allowing the non-indicted L, who is the office chief of the K Foundation, to construct the K Foundation M, and abused his official authority, it cannot be deemed that the above defendant abused his official authority as the chief of D office or that the above L did not perform an act without any legal obligation. In light of the records and records, it cannot be deemed that the court below erred in the misapprehension of facts affecting the conclusion of the judgment, such as the theory of facts acknowledged in the process of determining the facts.

2. The prosecutor's ground of appeal No. 2 is examined.

Article 2-2 subparag. 1 of the Enforcement Decree of the Presidential Security Office Act is null and void because it unfairly expands the concept of the Colonel defined in Article 2(1) of the Presidential Security Office Act. Therefore, since the head of the D office does not have the right to request cooperation of the head of the State agency or local government with respect to the provision of separate dwelling areas of the former President, he shall not be based on his official authority to request cooperation with the head of the State agency or local government. Thus, even if the contents of the request for cooperation are unreasonable, the above act of the defendant does not constitute a crime of abuse of official authority under the Criminal Act or a crime of abuse of official authority under the Presidential Security Office Act, and even if there was an error of law by erroneously interpreting the law as in the judgment of the court below that the above act of the defendant does not constitute a crime of abuse of official authority under the Criminal Act or a crime of abuse of official authority under the Presidential Security Office Act, the court below is justified in the judgment of the court of first instance that acquitted the above defendant, as seen in the above paragraph 1.

3. Judgment on the Prosecutor’s ground of appeal No. 3

As long as the court below determined that there is no evidence to acknowledge that the above defendant abused his official authority as to the facts charged of abuse of official authority against the defendant A, it may be deemed that there is no evidence of the crime of abuse of official authority under Article 8 of the Presidential Security Office Act. Thus, the court below erred by misapprehending the elements of abuse of official authority under Article 11 of the Presidential Security Office Act and the crime of abuse of official authority under Article 123 of the Criminal Act, thereby failing to decide on the violation of the Presidential Security Office Act, it cannot be accepted.

4. Determination as to the first ground of appeal by Defendant C and each defense counsel of the Defendants (the grounds of supplementary appeal as stated in the supplemental appellate brief that Defendant A’s defense counsel submitted after the deadline for submitting the appellate brief is examined to the extent of supplement in case of supplemental appellate brief. The same applies to the following eight (8)).

Examining the evidence of the first instance court (Seoul District Court Decision 93Gohap203) cited by the court below by comparing it with the records, the court below may fully recognize the defendants' facts constituting a violation of the Punishment of Violences, etc. Act and obstruction of business of each of the above-mentioned offenses, which the court below found guilty, and it cannot be deemed that there was an error of law of misunderstanding facts affecting the conclusion of the judgment by violating the rules of evidence without properly conducting the deliberation like the theory of lawsuit, and therefore, there

5. Determination on Defendant C’s ground of appeal No. 2

The business subject to protection of the crime of interference with business refers to the business or business that a person continuously engages in according to his social status, and is included in the incidental business closely related to such main business. However, in this case, the N political party district party formation rally is an indispensable incidental business to the formation of a district party, and it is not a mere one-time exercise as asserted by the above defendant. Thus, the judgment of the court below that held that the first instance court's decision was just, and there is no error of law by misunderstanding the legal principles as to the crime of interference with business, such as the theory of lawsuit, and it is not appropriate to invoke the case in this case, since the court below's decision that held that the rally for formation of the N political party district constitutes an object of protection of the crime of interference with business is not a mere one-time exercise, as argued by the above defendant.

6. Defendant C’s ground of appeal No. 3 and his defense counsel’s ground of appeal

Judgment on the second point.

Article 2 (2) of the Punishment of Violences, etc. Act provides that "When two or more persons jointly commit a crime" means a case where several persons recognize and used another person's crime on the same opportunity at the same place. Even though it is acknowledged that a conspiracy with the crime of violence, etc. was conducted, and where it is not recognized that two or more accomplices jointly participated in the crime or was at the place of crime, it does not constitute the case of joint crime. However, even though multiple persons conspired to commit the crime listed in Article 2 (1) of the above Act, if two or more persons jointly commit the crime at the place of crime, it shall be deemed that those who did not have the place of crime may be punished as joint crime under Article 2 (2) of the above Act. In this case, as discussed in the judgment of the court of first instance, even if the defendants did not participate in the commission of each crime, and did not exist at the place of each crime, according to the evidence admitted by the court of first instance, the court below erred in the misapprehension of legal principles as to legal principles as to legal guidance under Article 2 (2) of the above Act.

7. Determination on Defendant C’s ground of appeal No. 4

The facts charged in the indictment are clearly stated to the effect that the defendants conspired to commit the crime of this case by gathering opinions on a national restraint even if they use physical methods for the formation of the N Party District Party and the dissolution of the N Party District Party, after the N Party's Declaration of the Formation of N Party was made in operation with P and P after the N Party was made to threaten the formation of the N Party. Thus, it is evident that the judgment of the first instance, as cited by the court below, recognized that the defendants conspired to commit the crime of this case in order to prevent or obstruct the formation of N Party's N Party, and that there is no reason to criticize the purport that the defendants would be disadvantageous to the defendant's exercise of his right of defense by recognizing the fact that the prosecutor did not request a trial, and thus, it is unlawful.

8. Determination of Defendant C’s defense counsel’s grounds of appeal Nos. 3 and Defendant A’s defense counsel’s grounds of appeal Nos. 2 and 3

If the facts charged as stated in the indictment and the reasons stated in the judgment of the court of first instance cited by the court below are examined by comparing them with the facts charged lawfully recognized and the reasons stated in the judgment of the court of first instance, the prosecutor prosecuted the Defendants and other accomplices of the non-indicted P and the non-indicted P as committing the crime", and the court of first instance also recognized that the Defendants and other accomplices of the non-indicted P and the non-indicted P committed the crime in order or secret conspiracy. Although it is somewhat insufficient to express the statement in the judgment of the court below as to the grounds for appeal by the defense counsel of the defendant A as to this point, the court of first instance, as long as the court of first instance determined that the above fact-finding is justifiable, it cannot be deemed that the court of first instance did not have any illegality or reason recognizing facts different from the facts charged, such as the theory of lawsuit at the court of first instance or the judgment of the court of first instance

9. Therefore, all appeals by the Defendants and the Prosecutor’s appeals against Defendant A are dismissed, and with respect to Defendant C, part of the detention days after the appeal shall be included in the original sentence of the judgment below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Yong-sik (Presiding Justice)