[1] In a case where part of the money received under the pretext of solicitation of a narcotic offender detained in an investigation agency for the above solicitation is a report on other narcotics offender for the above solicitation and an arrest expense, whether a crime of violation of Article 111 of the Attorney-at-Law Act is established (affirmative)

[2] The time when the judicial police officer, etc. must notify the suspect of the summary of crime, the reason for detention, the right to appoint a defense counsel, etc.

[3] Criteria for determining the illegality of an investigation into a vessel

[4] The case holding that in a case where a narcotics offender was arrested on the ground that he saw a knife that he intends to throw away at the scene of crime, it cannot be deemed as a "Carrying" of dangerous articles under Article 7 of the Punishment of Violences, etc. Act

[1] Article 111 of the Attorney-at-Law Act / [2] Articles 200-3 and 200-5 of the Criminal Procedure Act / [3] Article 13 of the Criminal Act / [4] Article 7 of the Punishment of Violences, etc

[1] Supreme Court Decision 97Do2109 delivered on October 10, 1997 (Gong1997Ha, 3550) Supreme Court Decision 2005Do7771 Delivered on December 22, 2005, Supreme Court Decision 2007Do304 Decided April 10, 2008 / [2] Supreme Court Decision 2004Do3212 Delivered on August 30, 2004, Supreme Court Decision 2007Do7961 Delivered on November 29, 2007, Supreme Court Decision 2007Do1006 Delivered on February 14, 2008 / [3] Supreme Court Decision 2006Do2339 Delivered on July 12, 2007, Supreme Court Decision 2007Do3081 Delivered on July 28, 2007

Defendant 1 and one other

Prosecutor and Defendants

Attorney Park Jong-chul et al.

Daegu High Court Decision 2007No495, 496 decided March 20, 2008

All appeals are dismissed. As to Defendant 2, 110 days out of the number of detention days after the appeal shall be included in the original sentence of one year.

The grounds of appeal are examined.

1. As to the defendants' violation of the Attorney-at-Law Act

Article 111 of the Attorney-at-Law Act refers to cases where money and valuables are received under the pretext of soliciting or arranging a case or affairs handled by a public official. It merely provides labor or convenience in connection with a case or affairs handled by a public official and receives money and valuables in consideration thereof (see, e.g., Supreme Court Decisions 2003Do3145, Sept. 24, 2004; 2003Do3145, Sept. 24, 2004). However, in cases where money and valuables are received under the pretext of soliciting a case or affairs handled by a public official by a public official by providing labor or convenience in connection with the case or affairs handled by a public official, and in cases where money and valuables are received under the pretext of providing them with labor or convenience in connection with the case or affairs handled by a public official, the whole amount of money and valuables were in the pretext of soliciting a public official (see, e.g., Supreme Court Decisions 2005Do514, Apr. 29, 2005).

Based on its adopted evidence, the court below found Defendant 1 guilty of receiving money and valuables from Nonindicted 1 on April 28, 2007 on the part of the charges of giving and receiving money and valuables from Nonindicted 1 on the part of the investigation agency around 22:00,000 won, on the ground that Defendant 2 received money and valuables from Nonindicted 1 on the part of the investigation agency, and Defendant 1 received money and valuables from Nonindicted 1 on the part of the investigation agency, and the rest of Defendant 2 received money and valuables from Nonindicted 1 on the part of the investigation agency for the purpose of having Nonindicted 1 take a preference for investigation at the investigation agency. Defendant 2 received 12 million won from Nonindicted 1 on the part of the investigation agency around 202:0,000 won from Defendant 1 on the part of the charges of giving and receiving money and valuables from Nonindicted 1 on the part of the investigation agency around 20,000 won, and around 20:1 million won on May 27, 2007.

Examining the above legal principles and the evidence duly admitted by the court below in light of the records, the above judgment of the court below is just, and there is no violation of the rules of evidence, incomplete deliberation, or misapprehension of the legal principles as to the violation of the Attorney-at-Law

2. As to the violation of the Act on the Control of Narcotics, etc. by the Defendants’ trade of philophones

Based on its adopted evidence, the lower court found Defendant 1 guilty of this part of the facts charged that Defendants 1 sold 10,500,000 g of phiphones to Defendant 2 on April 30, 2007 and sold 1,50,000 g of phiphones to Defendant 2.

Examining the evidence duly admitted by the court below in light of the records, the above judgment of the court below is just and acceptable, and there is no violation of the rules of evidence or incomplete deliberation, as alleged in the grounds of appeal.

3. As to the violation of the Act on the Control of Narcotics, etc. due to the administration of phiphones by Defendant 2

The above defendant appealed from the judgment of the court of first instance which found him guilty of this part of the facts charged on the sole ground of unfair sentencing, but the appeal was dismissed at the court below. In such a case, the above defendant cannot be viewed as the ground of appeal that there was an error of mistake of facts or of misunderstanding of legal principles as to the judgment of the court of first instance (see, e.g., Supreme Court Decision 2002Do7115, Feb.

4. As to the remaining grounds of appeal by Defendant 1 and counsel

A. As to the assertion of violation of law in trial proceedings

According to the records, the court below stated that Defendant 1 joined the case of 2007No496 in the court below against Defendant 2 on the fourth trial date of the case of 2007No495, and that Defendant 2 received KRW 12 million from Nonindicted 1 on the trial date of the above case and purchased KRW 1.5 million on April 28, 2007 and purchased 10 phiphonephones.

Defendant 2’s statement on the date and time when Nonindicted 1 received KRW 12 million from Nonindicted 1 and on the date and time when Defendant 1 purchased phiphones from his investigative agency and the first instance trial are different. However, according to the records, Defendant 2 appeared as a witness on the second trial date of the lower court of 2007No495 case against Defendant 1, and he was paid KRW 12 million from Nonindicted 1 on April 28, 2007 due to Nonindicted 1’s receipt of KRW 12 million on the next day after he was asked to return money due to Nonindicted 1’s request, but Defendant 1 called to the effect that he continued to work for Nonindicted 1, and deposited the money in the account of KRW 989,000 out of the said money into the account of KRW 4,000 on the trial date of the lower court’s new trial without having been presented to Defendant 1’s statement on the deposit of KRW 308,000 on the date and after the second trial date.

In addition, Article 298(4) of the Criminal Procedure Act provides that the court may suspend the trial proceedings for a necessary period of time in order to make the defendant prepare for the necessary defense ex officio or at the request of the defendant or his/her defense counsel when it is deemed that the addition, withdrawal, or change of facts charged or applicable provisions of law would increase disadvantage of the defendant. However, the foregoing amendment of the indictment during the fourth trial of the court below is merely the date when the defendant 2 received money from the non-indicted 1, the date when the defendant 2 received money from the non-indicted 1, the date and details the defendant 1 received money from the non-indicted 1, the date and time when the defendant 1 received money from the defendant 2, and the date and time when the phone trading between the defendants was changed, and thus it cannot be said that the defendant 1's exercise of the right of defense may not be said to be affected to the extent that the trial proceedings are suspended (the defense counsel of the defendant

B. As to the assertion of illegal arrest, etc.

In the case of emergency arrest of a suspect under the provisions of Article 200-3 of the Criminal Procedure Act, a public prosecutor or a judicial police officer must give an opportunity to defend himself/herself before entering the exercise of force for emergency arrest. Such notice should be given in principle prior to the entrance into the exercise of force for emergency arrest. However, in cases where a person driving away a suspect or is under de facto suppressions a suspect against violence, it shall be given in the course of attachment or restraint, or where it is not suspected, it shall be given without delay after attachment or restraint (see Supreme Court Decision 2007Do7961, Nov. 29, 2007, etc.).

According to the records, the prosecutor of the Daegu District Public Prosecutor's Office waiting in front of the above defendant's office in order to arrest the defendant 1 on the charge of violating the Narcotics Control Act on May 29, 2007, together with the narcotics investigation of the above defendant's office and the employees of the above public prosecutor's office, and one of the employees of the above public prosecutor's office who was going out of the office and went out of the office was under the above defendant's name. Accordingly, the above defendant's employees of the above public prosecutor's office who attempted to go out of the office led the above defendant to launch electric shock and control the above defendant. One of the employees of the above public prosecutor's office at the above public prosecutor's office who

Therefore, in light of the above legal principles, the court below's judgment based on the premise that the above arrest is lawful does not err by misapprehending the legal principles as to emergency arrest, as alleged in the ground of appeal.

C. As to the assertion of the vessel investigation

It is unlawful for an investigative agency to arrest a criminal by inducing a person who does not have the original criminal intent to commit a crime. In a specific case, whether it constitutes an illegal crime should be determined by comprehensively taking into account the type and nature of the relevant crime, the status and role of the inducer, the details and method of inducing the induced, the response of the inducedr, the criminal history of inducing the induced, and the illegality of the induced act itself. An induced directly related to an investigative agency appeals to the relief or appraisal of the induced person by using personal friendly relationship with the induced person, or by using monetary or psychological pressure or threat, or excessively interfering with the induced person by inducing the induced person to commit a crime by excessively presenting the method of the crime or providing the money to be used for the crime, etc. However, it is not allowed for the induced person to act as an illegal vessel investigation, but it is not allowed for the induced person to act as a criminal investigation. Even if the induced person did not directly have a relation with the investigative agency, it is not considered that the induced person requested to commit a crime by 200 or 270 criminal intent.

According to the records, on May 25, 2005, Defendant 1 delivered a disposable injection device containing approximately 0.03 g of oponon to Nonindicted 2 on the part of May 25, 2005, and injected it by inserting approximately 0.03g of oponon into a single-use injection machine at around 18:00 of the same month, and dilution it into one’s own arms. Nonindicted 2 reported the above fact to the prosecutor’s office on the 29th of the same month, so that the said Defendant was arrested. However, there is no evidence to deem that Nonindicted 2 had the said Defendant deliver the opon or induced the said Defendant to administer the opon on the part of the said Defendant, and it cannot be deemed that the opon medication, etc. of the said Defendant was caused by a naval investigation.

The court below is just in finding the above defendant guilty on the premise that the administration of philophones by the above defendant does not constitute a naval investigation, and there is no error in the misapprehension of legal principles as to the naval investigation or in violation of the rules of evidence

5. As to the Prosecutor’s Grounds of Appeal

The term "Carrying" of dangerous objects as referred to in Article 7 of the Punishment of Violences, etc. Act means carrying the dangerous objects below the body or body near the body that are intended to be used at the scene of the crime (see Supreme Court Decisions 91Do427, Apr. 9, 1991; 92Do381, May 12, 1992, etc.).

The court below found Defendant 1 guilty of this part of the facts charged on the ground that: (a) Defendant 1’s testimony was changed to the effect that 5-6 staff members of the prosecution employed by the prosecutor’s office and knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife.

In light of the above legal principles and records, the above measures of the court below are just and acceptable, and there is no violation of the rules of evidence or misunderstanding of legal principles as to the carrying of dangerous objects under Article 7 of the Punishment of Violences, etc. Act, as alleged in the grounds of appeal.

6. Conclusion

Therefore, all appeals are dismissed, and as to Defendant 2, part of the detention days after the appeal shall be included in the original sentence of one year in the imprisonment of the court below, and as to Defendant 1, it shall be included in the statutory calculation, it is decided as per Disposition by the assent of all participating Justices.

Justices Kim Ji-hyung (Presiding Justice)