[1] Requirements for establishing a joint principal offender

[2] The case holding that there was no intention for joint processing in the crime of obstruction of the performance of official duties by fraudulent means

[1] In order to constitute a joint principal offender, the subjective requirement is the intent of joint process and objective requirements, and the fact of execution of a crime through functional control by a joint doctor is required. As such, the subjective requirement of the above subjective requirement is that the intent of joint process is not sufficient to recognize another person's crime but to accept it without preventing it, and it should be deemed that it is one for the purpose of committing a specific crime with a joint intent, and that it is transferred to the execution of one's own intent by using another'

[2] The case holding that it is merely an aiding and abetting a principal of the crime of obstruction of the performance of official duties by fraudulent means and there was no intention to jointly process

[1] Article 30 of the Criminal Code / [2] Article 30 of the Criminal Code, Article 137 of the former Criminal Code (amended by Act No. 5057 of Dec. 29, 1995)

[1] Supreme Court Decision 84Do2118 delivered on May 14, 1985 (Gong1985, 569), Supreme Court Decision 88Do114 delivered on September 13, 198 (Gong1988, 1294), Supreme Court Decision 88Do1247 delivered on April 11, 198 (Gong1989, 781), Supreme Court Decision 92Do226 delivered on November 27, 1992 (Gong193Sang, 316), Supreme Court Decision 92Do3204 delivered on March 9, 193 (Gong1993, 1939, 193Do32939, 197).

Defendant 1 and one other

Defendant Funeral and Prosecutor

Attorneys Kim Jong-chul et al.

Seoul High Court Decision 95No1761 delivered on September 20, 1995

All of the appeals by Defendant 1 and by the prosecutor against Defendant 2 are dismissed. As to Defendant 1, 120 days out of the number of detention days after the appeal shall be included in the original sentence.

1. Defendant 1’s ground of appeal is examined.

According to the evidence adopted by the court of first instance against Defendant 1 maintained by the court below, the fact that Defendant 1 promised to receive 50 million won each from Co-Defendant 1 and 2 of the court of first instance can be sufficiently recognized, and there is no error of law by erroneous application of a mistake of facts or by erroneous application of a law, such as the theory of lawsuit, which is contrary to the rules of evidence, or by erroneous application of a law. The argument is without merit.

2. We examine the Prosecutor’s grounds of appeal as to Defendant 2.

In order to constitute a joint principal offender, the subjective requirement is the intention of joint process and objective requirements that require the fact of execution of a crime through functional control by a joint doctor. As such, the subjective requirement of the above subjective requirement is that the intention of joint process is insufficient to recognize another person’s crime and to accept it without preventing it, and that the intention of joint process is to move to one’s execution by using another’s act (see, e.g., Supreme Court Decisions 88Do114, Sept. 13, 1988; 88Do1247, Apr. 11, 1989; 92Do3204, Mar. 9, 1993).

According to the statement of the protocol of interrogation of Defendant 2 prepared by the public prosecutor as to Defendant 2, Defendant 2 accepted the above request of Defendant 1 and Defendant 1 and Co-defendant 1 of the court below as supervisor of the specific high fact, it can be recognized that Defendant 1 committed an act to the extent that he knows that the specific applicant 1 did an act to see the answer of another applicant. However, Defendant 1 asked Defendant 2, who is aware that he and the above co-defendant 2 request the posting of himself and the above co-defendant in a specific high fact from the prosecution to the court of the court of the court below, to the extent that he can be seen as having committed an act to interfere with the performance of official duties, and Defendant 2 cannot be seen as having conspired to commit an offense between Defendant 2 and his supervisor, and Defendant 1 cannot be seen as having attempted to commit an act to interfere with the performance of official duties, and Defendant 2 cannot be seen as having committed an unlawful act to the extent that he did not know that he did not have any other unlawful act.

In the same purport, the court below maintained the first instance court which acquitted Defendant 2 of the charges of obstruction of the performance of official duties by fraudulent means, and there is no error of law by misunderstanding the legal principles of the co-principal like the theory of the lawsuit. There is no reason for discussion.

3. Therefore, all appeals by Defendant 1 and prosecutor against Defendant 2 are dismissed, and Defendant 1 shall be included in the principal sentence after the appeal. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)