2016Gohap511, 734 (Joint), 2017Gohap112 (Joint)

Violation of the Punishment of Violences, etc. Act (Partial Recognition of Composition and Activities of Organizations, etc.)

violation of the Punishment of Violences, etc. Act (the composition and activity of an organization, etc.)

[j] Violation of the Road Traffic Act (Operation without License), special injury, damage to property

A

Preliminaryity, Kim Young-American, Cleanup (Public Prosecution), and clinical (Public trial)

Law Firm B, Attorney C, D

August 11, 2017

A defendant shall be punished by imprisonment for three years.

【Criminal Power】

On April 30, 2008, the Defendant was sentenced to a suspended sentence of two years for a violation of the Punishment of Violences, etc. Act at the Busan High Court, which was sentenced to a suspended sentence of three years, and on April 9, 2009, on May 22, 2009, the judgment became final and conclusive, and the said suspended sentence was invalidated, and the parole period was expired on September 28, 2012 during the execution of each of the above sentence in the Busan District Court, and the parole period was expired on February 16, 2013.

【Criminal Facts】

"2016 High Ma511 E is a violent crime organization that mainly engages in activities to secure economic benefits by taking advantage of the leading power of the Busan regional violent world with the main import basis for the entertainment establishments and entertainment rooms in the areas such as the Busan, Seo-gu, Busan, the Daegu, and the East-gu G.

1. Admission to Epha;

From October 2012 to December 2, 2012 of the same year, the Defendant recommended to join Emph from officers in distressed in the name-free Emphy in Busan Metropolitan City to join the Emphy, and around that time, the Defendant joined the Emphy's Emphy's staff. After that, the Emphy's staff, as well as I, J, etc., who participated in the Emph from the new Emph in the Lcafeteria located in the area near the Suwon-gu K in Busan Metropolitan City, and received the personnel from the O and P, who was newly enrolled in the Emph in the Gmphy in Busan Metropolitan City, along with the above I, around June 2015. Accordingly, the Defendant joined the Emph, a violent crime group.

2. Mutual aid for Em-waves;

Around December 2014, the Defendant, as a member of the Eph, who was a criminal organization, made it easy for S to commit the crime by informing S of the organization regulations and allowing S to take part in the Epha in the Epha and by allowing S to take part in the Epha in the Epha, by stating that R year A and S, who was affiliated with Pguin Q Qm at a non-place of Busan (hereinafter referred to as "SP, etc."), who wanted to take part in the Epha, and that S would not take part in the Epha in the Epha in order to assist S to take part in the Epha.

Accordingly, the defendant assisted S to join Epha, a criminal organization.

3. Violation of the Road Traffic Act;

On July 13, 2016, the Defendant, without obtaining a driver’s license on July 13, 2016, driven a Madart car at approximately 1m section from the Heteteteteteteteb apartment parking lot located in Busan, Daegu, Daegu, to the sea-to-land parking lot located in the same Dong and Dong. The Defendant driven a Madart car at approximately 1m section.

1. Damage to property;

On June 4, 2016, at around 06:34, the Defendant: (a) destroyed the above elevator, which is the joint ownership of the victim U.S. U.S. U. 101-dong elevator from several occasions without any reason, to repair cost of KRW 6,114,213; and (b) damaged the above elevator, which is the joint ownership of the victim U.S. U. 101-dong elevator from several occasions, to repair cost of KRW 1,375,00; and (c) continuously destroyed the above entrance, which is the victim of the first floor of the apartment, from the elevator, to repair cost of KRW 150,00,00.

2. An special injury:

The Defendant, at the same time and at the same place, discontinued the elevator and the apartment management office staff have been in danger of being late, put the victim V (ma, 60 years old) on the bridge, which requires approximately two weeks of medical treatment for the victim.

"2017 Gohap112"

On August 22, 2015, the Defendant: (a) around August 22, 2015, at the “X” club located in Busan Maritime Transportation Daegu W, and (b) on the ground that the victim Y(30 years of age) excavated to the Z, which is a dangerous object, to the Empha of the Empha ship, caused the Defendant to inflict a bodily injury at approximately 6cc teared both marith and marith of the victim’s head.

Summary of Evidence

"2016, 511

1. The defendant's partial statement in the first protocol of trial;

1. Partial statement of witness P in the fifth trial record;

1. Statement made by S in the seventh trial records;

1. Each interrogation protocol of the prosecution against M, AA;

1. Police suspect interrogation protocol of P;

1. Investigation report (exploiting of persons who are detained in custody and persons who have interviewed persons and persons who have deposited money in custody);

1. Investigation report (the fact that the location of the defendant's cell phone base station was near the place where he/she was involved) and the details of the phone calls from the defendant's cell phone around June 4, 2015;

1. Investigation report (the confirmation of the contents of each currency between the EM staff); and

1. Investigation report (the confirmation of vehicles operated by A of a Suspect);

1. Investigation report (limited to attachment such as the vehicle register operated by A of a Suspect), the register of motor vehicles (T), the register of motor vehicle driver's licenses (A);

1. Investigation report (as to the attachment of a suspect A's photograph), photographic (as to the sentence of the defendant A), "2016, 734;

1. Statement of the accused in the eight-time protocol of trial;

1. Each police statement made to V and AB;

1. A report on an occurrence;

1. The investigation report (No. 1 No. 1);

1. A written estimate for an investigation report;

2017 Highest 112

1. Defendant's legal statement;

1. Examination protocol of suspect about Y by prosecution;

1. Each police officer's interrogation protocol about AC, AD, AE, AF, Z, and Y;

1. Each police record statement of AG (tentative), Y, AF, AD, AH, AI, AJ, AC, AK, AL, AM, AO, AP, and Q;

1. A report on internal investigation (referring to the preparation of a written statement of provisional questioning);

1. Report on internal investigation (limited to attachment of a list of 112 reported cases), list of 112 reported cases, status of receipt and handling of accident in cases, and place of work in the earth;

1. Investigation report (for statements made by 112 reporters on telephone communications);

1. Domestic investigation report (attaching to an emergency medical service log), 119 emergency medical service log;

1. Investigation report (on-site warning inside and outside of X clubs and seat arrangement map), photographs;

1. A investigation report (the CCTV screen);

1. Investigation report (to attach a management ledger for organized violence Empha and AR) and management ledger;

1. Investigation report (attaching written opinions on AE of a suspect);

1. Investigation report (in cases of attaching photographs by cutting down the organized violence force mobilized after the CCTV was restored in the field X club), photographs;

1. Investigation report (as to photograph of a suspect's body A), photograph;

1. Investigation report (the details of the restoration of weather expenses and accompanying photographs of the scene of the restored crime) and each photograph thereof;

1. Investigation report (in relation to suspect's partial refusal of statement, and refusal of signature and seal);

1. Investigation report (Attachment of suspect's body body Y)

1. Each protocol of seizure and the list of seizure;

1. Revolving results of digital analysis;

1. Details of communications;

1. A medical report and a medical certificate;

【Special Crimes in the Korean War】

1. Inquiry report (A), investigation report (verification of whether the period of repeated crime A is confirmed), personal confinement status, judgment, investigation report (related to the date of release of a suspect), investigation report (related to the date of release of a suspect), investigation report (report on the absence of disposition and results of confirmation, and confirmation report on the date of release);

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 4 (1) 3 of the Punishment of Violences, etc. Act (a point of joining a criminal organization), Article 4 (1) 3 of the Punishment of Violences, etc. Act, Article 32 (1) of the Criminal Act (a point of joining a criminal organization), Article 152 subparagraph 1 and Article 43 of the Road Traffic Act, Article 36 of the Criminal Act, Article 258-2 (1) and Article 257 (1) of the Criminal Act (a point of special injury)

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act (Organization and Activities of Organizations, etc.) for the violation of the Punishment of Violences, etc. Act (Organization and Activities of Organizations, etc.), and special injury to victims Y: Provided, That the proviso to Article 42 of the Criminal Act shall apply to the crime of aiding and abetting in violation of the Punishment of Violences, etc. Act (Organization

1. Aid and mitigation;

Articles 32(2) and 55(1)3 of the Criminal Act (as to the crime of aiding and abetting a violation of the Punishment of Violences, etc. Act (Composition and Activities of Organizations, etc.)

1. Aggravation for concurrent crimes;

The punishment provided for in the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (the aggravation of concurrent crimes within the scope of proviso of Article 42 of the Criminal Act)

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

A. Of the facts charged in the instant case, the facts charged regarding the violation of the Punishment of Violences, etc. (Composition and Activity of Organizations, etc.) due to the Joining the E-wave were not specified. However, the Defendant did not join the E-wave, and even did not assist and abetting S to join the E-wave.

2. Determination

A. Judgment on the unspecified argument in the facts charged

The facts charged shall be stated clearly by specifying the time, date, place, and method of a crime (Article 254(4) of the Criminal Procedure Act). The purport of the law requiring the specification of the facts charged is to facilitate the exercise of the defendant’s right to defense. As such, the facts charged is sufficient if it is stated to the extent that the facts constituting the crime are recognizable from different facts by integrating these elements, and even if the date, time, place, method, etc. of a crime are not specified in the indictment, it does not go against the purport of the law allowing the specification of the facts charged, and if it is inevitable to generally indicate such facts in light of the nature of the facts charged, and it does not interfere with the defendant’s exercise of his/her right to defense (see, e.g., Supreme Court Decisions 2002Do2939, Oct. 11, 2002; 201Do4781, Nov. 13, 2001).

Of the facts charged in the instant case, the part as to the violation of the Punishment of Violences, etc. (Organization and Activity of Organizations, etc.) due to the E-party accession states that “from October 2012 to December of the same year,” and the place is also indicated as “non-fluor not more than Busan Shipping Daegu”, but the fact constituting the elements of the instant indictment is stated to the extent that it can be distinguished from other facts constituting the crime. In light of the nature of the crime charged in this part of the indictment, the general indication is inevitable in light of the nature of the crime, and there is no obstacle to the Defendant’s exercise of his/her right to defense, and thus, this part of the facts charged is not specified. This part of the allegation by the Defendant and the

B. As to whether the defendant was admitted to EM

1) Relevant legal principles

Even though the organization and joining act of a criminal organization itself constitutes an element of a crime requiring strict certification, it is common sense that the act is conducted in extreme corruption in a situation where it is difficult to identify outside the country due to the nature of the act, and once a member becomes a member, the withdrawal is not free, and it is extremely difficult to expect the existence of direct physical evidence or witness because there are many cases of cruel retaliation against a deserter, and it is extremely difficult to expect the existence of a witness. Thus, the organization and joining time of the organization can be reasonably determined based on normal empirical rules by comprehensively taking into account various indirect evidence, such as the personal relationship of the members, the mode of ordinary conduct, and the development of a criminal act conducted by the members, barring special circumstances (see, e.g., Supreme Court Decision 200Do4370, Dec. 27, 2000).

2) Determination

Comprehensively taking account of the following facts and circumstances acknowledged by the evidence duly adopted and examined by this court, the fact that the Defendant joined E-wave, a violent crime organization, from October 2012 to December 2012 can be sufficiently recognized.

A) A statement of O(AS.)

(1) 0) The police and the prosecutorial office joined the Emph in May 2015, and joined the Emphon in AU located in AT at Kim Sea, and at the time, the Defendant joined the Emphon. The Defendant made a detailed statement on the circumstances of the above member’s personnel management. In addition, the Defendant stored the Defendant in his cell phone as 10’s 'Ampon’, and 0 was posted at the prosecutor’s office “after the name of the Empon and indicated the age difference between the Empon and the ship.” The Emph stated that the Emp is a structure that determines the age difference between the Empon and the ship.”

(2) On the other hand, this Court appeared as a witness on the third trial date of this Court, and stated that " around June 2015, the defendant was absent from the above AU, and at that time, the defendant was present at the 14th trial date of this Court and stated that "the defendant was present as a witness even at the 14th trial date of this Court," and reversed the statement to the above investigation agency, but the above investigation agency was reversed.

In light of the identity and contents of the statement, the name of the defendant entered into the 0 mobile phone, the relationship between the defendant and the 0, and the status of 0 in Empha, etc., the statement made by the above investigation agency of 0 is recognized as credibility.

B) Statement of S

(1) On December 1, 2014, S consistently joined the Empha upon the introduction of the Defendant from the prosecutor’s office to the present court, and at that time, the Defendant was a member of the Empha. At that time, on July 28, 2015, at AW AW A or AV, participated in the Empha rally, and the Defendant was present at the empha rally, and the Defendant was present at the empha rally. On August 1, 2015, the Defendant stated that the Empha held the Empha rally. The Defendant, who was the Defendant, was holding the empha rally at the Tmpha meeting, was not inconsistent with the above statements or there was no part contrary to objective circumstances.

2) In addition, S was indicted for committing a violation of the Punishment of Violences, etc. Act (the composition and activity of an organization, etc.) (the organization, etc.) in the Busan District Court 2016Gohap460 on November 11, 2016 due to the criminal fact, such as 'the defendant was admitted to Emph through the introduction of the defendant who was an organization.' On November 11, 2016, S was sentenced to one year and eight months of imprisonment, and all appeals and appeals against the above judgment were dismissed, and the above judgment became final and conclusive on April 10, 2017.

C) Each statement of P and M

(1) Around May 2015, P joined the Emph from the police to the Emph, and was engaged in personnel affairs. On June 4, 2015, the Defendant, S, andO, etc. when reporting personnel affairs in Amph in AX in Kimhae-si, Kimhae-si, the Defendant stated that “The Emph Emph is Rirph,” but in this court, the Defendant provided personnel affairs to the Defendant in AU located in AT in AT because he/she was originally aware of the Defendant, and that he/she was aware of the fact that he/she was Emph, and that he/she was aware of Emph, and reversed his/her statement to the said investigative agency.

(2) Around February 2015, M joined the Emph in the police station, joined the Empha, and participated in the Empha ship in the same restaurant with S, P, etc., at that time, the Defendant was in the above restaurant. At that time, the Defendant was in the above restaurant for six years. On August 2015, 2015, the Defendant was present in the Empha ship in the original restaurant with the trade name AV AV village in the Geum-gu, Busan. At that time, the Defendant was also present at that time, and the Defendant was also present at that time. In this court, the Defendant stated that the Defendant was not in the above restaurant. The Defendant was not aware of the Empha ship.

(3) However, in light of the existence and content of the truth in P and M investigation agencies, P, M and the relationship between P and the Defendant, and status in Eph, the statement in P and M investigation agencies is deemed to have credibility.

D) From August 2008 to October 2012, the Defendant came to know at the prosecution that there were many Emphists while living in the Busan detention center. After release, the Defendant was engaged in funeral services at the shipping team, and became aware of Emph 22 staff members. Emph 2 was known. Emph 1, such as Emph 2 staff, playing in a restaurant in AV, but the Emph 1 did not meet with Emph 2 staff members. Meanwhile, the Defendant assisted and abetted the Emph 3 as Emph 204, as follows.

C. The following facts or circumstances acknowledged by the evidence duly adopted and examined by this court as to whether the Defendant assisted the ESA accession, i.e., S consistently joined the Z coffee shop located in the Shipping Team by introducing the Defendant at around December 2014 or around January 2015, upon the introduction of the Defendant A, entered the ZG coffee shop, and joining the ES. The Defendant intending to withdraw from the EM will be living more than '.' On September 2015, 2015; ii) there was no contradiction or any violation of objective circumstances in the above statement; iii) upon the Defendant’s request, S was indicted for a criminal offense, i.e., “A was admitted to EM through the introduction of the Defendant as a constituent cause of the EM organization; iii) the Defendant was not aware of the fact that it was difficult for the Defendant to have become aware of the 20-year relationship, i.e., the e., the 2-year relationship and the 2-year relationship.

1. The grounds for sentencing: Imprisonment with prison labor for not less than two years nor more than 45 years;

2. The sentencing criteria do not apply to the crimes of violation of the Punishment of Violences, etc. Act (the composition and activities of organizations, etc.) and the special injury crimes under Article 258-2 of the Criminal Act newly established on January 6, 2016.

3. Determination of sentence;

○○ Unfavorable Circumstances: The instant crime was committed by the Defendant by joining the Emph, which is a violent crime group, aiding and abetting S to join the Emph, without a driver’s license, and operated a car without any special reason, and damaged an apartment elevator by generating it, without any special reason, and the staff of the apartment management office of the damaged elevator has delayed to stop the elevator, causing bodily injury in need of two weeks of treatment. The instant crime was committed by leaving the head of the victim Y, which is a new 20th century organization, into two weeks of medical treatment, in light of the content and circumstances of the crime, frequency of the crime, and method of the crime. The Defendant committed part of the instant crime during the period of repeated crime, and the crime committed by the Defendant not only by violence or collective nature, but also by the staff of the organization, and also by causing serious social or indirect harm to the majority of citizens, and thus, the Defendant needs to be punished in view of the need to eradicate the same kind of crime.

The circumstances favorable to ○: The defendant is against the recognition of the remaining crimes except for the crime of violation of the Punishment of Violences, etc. Act (organization and activity of an organization, etc.) and the crime of aiding and abetting it; the defendant agrees with the victim V and Y of the special injury crime; and the victim does not want the punishment of the defendant by agreement with the victim of the property damage and damage.

Judges and judges of the presiding judge;

Judges Park Jong-jin

Judges Lee Jin