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(영문) 대법원 2012. 11. 15. 선고 2012도7407 판결
[공갈교사][미간행]
Main Issues

[1] The elements for not imposing liability for the crime of aiding and abetting a teacher who deserts from the relation of accomplice

[2] In a case where a principal offender decided to commit a crime through the teacher's act of aiding and abetting, whether the principal offender constitutes a crime of aiding and abetting in addition to the act of aiding and abetting and committing the crime (affirmative)

[Reference Provisions]

[1] Article 31 (1) and (2) of the Criminal Act / [2] Article 31 (1) of the Criminal Act

Reference Cases

[2] Supreme Court Decision 91Do542 delivered on May 14, 1991 (Gong1991, 1683)

Escopics

Defendant

upper and high-ranking persons

Defendant

Defense Counsel

Attorney Kim Sung-sung et al.

Judgment of the lower court

Seoul Central District Court Decision 2012No1069 Decided June 1, 2012

Text

The appeal is dismissed.

Reasons

The grounds of appeal are examined.

1. The crime of aiding and abetting the principal of the crime is established when the principal of the crime has led the principal of the crime to commit the crime, and the reason for punishing the principal of the crime is that the principal of the crime has decided against the principal of the crime. Therefore, in order for the principal of the crime to escape from his accomplice relationship, it is necessary to resolve the resolution of the principal of the crime committed by the principal of the crime before the principal of the crime committed. In this case, the principal of the crime expresses his intent to withdraw the principal of the crime to the principal of the crime, and the principal of the crime explicitly withdraws the principal of the crime to the principal of the crime, or the principal of the crime explicitly withdraws from the principal of the crime to the principal of the crime, and even if the principal of the crime committed by the principal of the crime committed by the principal of the crime, it is difficult to view that the principal of the crime had the principal of the crime to continue to have the principal of the crime, and if the resolution of the principal of the crime by the principal of the crime is no longer maintained, it shall be considered that the principal of the crime under Article 31 of the Criminal Act.

Meanwhile, in order to establish the crime of a teacher, it is not necessary to be the only condition for the crime of a principal. Thus, insofar as the principal has passed a resolution to commit the crime through the act of a teacher, even if the principal has committed the crime due to another cause, it does not affect the establishment of the principal offender (see Supreme Court Decision 91Do542 delivered on May 14, 191, etc.).

2. According to the evidence adopted by the lower court, the Defendant instigated the Nonindicted Party to use a sponsed relationship with the victim, who is the chairman of ○○ Bank Trade Union, by calls from the Nonindicted Party on November 20, 201 and around November 20, 2011. The Nonindicted Party: (a) taken the victim from November 24, 201 to November 30, 201; (b) notified the Defendant of the fact that the victim was entering a hotel with female, and (c) notified the victim of the fact that the Nonindicted Party sent a sponsed message to the Nonindicted Party on several occasions from around December 7, 201 to December 13, 201; (d) the Nonindicted Party refused to send a sponsed message to the Nonindicted Party from around 14, 201 to around December 14, 201, by giving the victim’s family and the victim’s sponsed video messages to the Nonindicted Party’s 14th day.

Based on the above facts, the court below affirmed the judgment of the court of first instance that affirmed the judgment of the defendant on the following grounds: (a) the defendant had been urged to commit the above crime, but the non-indicted who was the victim had discontinued the crime before the commencement of the crime; and (b) the act of the non-indicted was committed under his own judgment by the non-indicted, and thus, the defendant's teacher did not have any causal relation with the non-indicted's attack; and (c) the defendant was alleged to have escaped from the co-offender relationship; (d) the non-indicted was led to the resolution of the crime; (e) the crime was committed by the non-indicted on the ground that the non-indicted was committed; and (e) the non-indicted was delivered five million won from the victim upon commencement of the crime; and (e) the causal relation was recognized between the act of the defendant's teacher and the criminal act of the non-indicted; and (e) the defendant made the statement that the defendant met by telephone to commit the crime, thereby, the causal relation between the defendant's act and the non-indicted's act cannot be viewed.

3. According to the above facts acknowledged by the court below, the defendant had the Nonindicted Party resolved to commit the instant crime, and the Nonindicted Party, who was decided by the Defendant’s teacher, received a phone call from the Defendant before the commission of the crime, but explicitly refused to do so, still maintained the resolution for the commission of the crime like the Defendant’s teacher’s teacher, and actually contributed to the victim according to the resolution.

In light of the above legal principles, there is a proximate causal relationship between the defendant's act of aiding and abetting the defendant and the non-indicted's act of extortion, and even though there was a spawn act of the defendant, as long as it appears that the non-indicted explicitly refused such act and maintained the resolution for the commission of the crime, it cannot be deemed that the defendant escaped from

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the renunciation of causation or accomplice relationship as alleged in the grounds of appeal.

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

Justices Kim Chang-suk (Presiding Justice)

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