[1] In a case where a suspect makes a false statement as to an accomplice at an investigative agency, whether the crime of attempted escape is established (negative in principle)

[2] Whether the act of making a false statement as the actual owner of a game room, amusement room, or scambling, despite the fact that a suspect who is investigated by an investigative agency is not the actual owner of the game room, amusement room, or scambing room constitutes a crime of aiding and abetting

[1] Article 151 of the Criminal Act / [2] Article 151 of the Criminal Act

[1] [2] Supreme Court Decision 2007Do1137 Decided December 24, 2008 (Gong2009Sang, 135) Supreme Court Decision 2009Do10709 Decided January 28, 2010 (Gong2010Sang, 479) / [1] Supreme Court Decision 2002Do5374 Decided February 14, 2003 (Gong2003Sang, 873)

Defendant

Prosecutor

Changwon District Court Decision 2009No1809 decided October 15, 2009

The appeal is dismissed.

The grounds of appeal are examined.

In investigating a criminal case, an investigative agency has the right and duty to confirm the suspect and collect and investigate objective evidence to acknowledge the suspected facts regardless of the statement of the suspect or witness. Thus, even if a witness was investigated by an investigative agency and made a false statement at the investigative agency without knowing the facts known to him/her, it does not constitute a crime of attempted crimes unless it is to make it difficult or impossible to detect or arrest the criminal by actively entering the investigative agency (see Supreme Court Decision 2002Do5374, Feb. 14, 2003, etc.). This legal principle applies to cases where the suspect made an implied or false statement on the accomplice at the investigative agency (see Supreme Court Decision 2007Do11377, Dec. 24, 2008, etc.).

Therefore, even if a criminal suspect who is investigated by an investigative agency on suspicion of violation of the Game Industry Promotion Act makes a false statement as actual business owner even though he/she is not an actual business owner, such as a game room, entertainment room, and scam room, such fact alone does not constitute a crime to escape a criminal: Provided, That if the criminal suspect makes a false statement on his/her own, he/she does not constitute a crime to escape a criminal even if he/she made a false statement on his/her own: Provided, That if the criminal suspect gives monetary benefits, etc. from the actual business owner, and controls him/her, he/she will be responsible for hiding the actual business owner and taking the role to be punished on his/her behalf (so-called a scambane president). Furthermore, even if he/she makes a statement as the actual business owner's statement, he/she may constitute a crime to escape a criminal even if he/she makes a false statement or makes it difficult or impossible for the investigative agency to detect or arrest the actual business owner.

According to the reasoning of the judgment below, the court below acknowledged facts as stated in its holding, and held that the statement made by the police does not constitute a crime of aiding and abetting a criminal, on the ground that the statement made by the non-indicted 1 cannot be punished on the ground that it does not constitute a case where it is difficult or impossible to detect or arrest the criminal, because it does not constitute a crime of aiding and abetting a criminal, even though it is deemed that the statement made by the non-indicted 1 merely recognized that he operated the game of this case, and that the above statement was merely a crime of aiding and abetting a criminal, in view of the purport that "self-indicted 1 operated the game of this case independently as the actual business owner of the game of this case," and that even if he concealed the existence of the defendant, who is the accomplice, was not an implied act as to the existence of other accomplices, and it does not constitute a crime of aiding and abetting a criminal, in addition to the statement made by the police.

In light of the above legal principles and records, the fact-finding and judgment of the court below are just and acceptable, and there is no violation of the rules of evidence or misapprehension of legal principles as to the establishment of crime of escape of criminals, as alleged in the grounds of appeal

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

Justices Ahn Dai-hee (Presiding Justice)