[1] The meaning of aiding and abetting under the Criminal Code

[2] Whether the defendant delivered property or property gains to another person in accordance with the intent of the criminal's acquisition of property or property gains, or whether the criminal's own authority is additionally collected

[3] The case affirming the court below's holding that in case where the amount paid to the experimental agent is actually attributed to the experimental agent and the expenses incurred in the experiment are charged to the experimental agent in accordance with its independent judgment, since the expenses incurred in the experiment are nothing more than a method of consuming the amount, the whole amount of the money received by the experimental agent is collected from the experimental agent who is not the above university professor

[1] Article 32 of the Criminal Act / [2] Articles 48 and 357 of the Criminal Act / [3] Articles 48 and 357 of the Criminal Act

[1] Supreme Court Decision 95Do456 delivered on September 29, 1995 (Gong1995Ha, 3652), Supreme Court Decision 96Do2427 delivered on January 24, 1997 (Gong1997Sang, 708), Supreme Court Decision 2000Do1914 Delivered on August 18, 200 (Gong2000Ha, 2036), Supreme Court Decision 2007Do1303 Delivered on April 27, 2007 / [2] Supreme Court Decision 93Do3064 Delivered on February 25, 199 (Gong194Sang, 1143), Supreme Court Decision 9Do9639 delivered on May 11, 199, Supreme Court Decision 209Do9639 delivered on June 29, 209)

Defendant 1 and two others

Defendants and Prosecutor

Attorneys Yang Sung-il et al.

Jeonju District Court Decision 2005No1066 Decided May 12, 2006

All appeals are dismissed.

We examine the grounds of appeal.

1. As to Defendant 1’s ground of appeal

Since the defendant who appealed on the sole ground of unfair sentencing cannot serve as the ground of appeal on any other ground, the defense counsel of the above defendant cannot serve as a legitimate ground of appeal against mistake of facts, etc. in the final appeal.

2. As to Defendant 3’s ground of appeal

A. Examining the reasoning of the judgment below in light of the records, it is just that the court below did not accept the above defendant's assertion that the court below did not know the facts as stated in its judgment based on the evidence adopted and did not gain any benefits since the test result was used in the dissertation, and there is no violation of the rules of evidence as alleged.

B. An act of aiding and abetting under the Criminal Act refers to any direct or indirect act that facilitates the principal offender’s act while knowing the fact that the principal offender is committing a crime. It also constitutes an act of aiding and abetting and aiding and abetting and aiding and abetting the principal offender as well as tangible and material aiding and abetting and strengthening the resolution of the crime (see Supreme Court Decision 2007Do1303, Apr. 27, 2007, etc.).

According to the reasoning of the judgment below, the court below affirmed the first inquiry team which found Defendant 3 guilty of aiding and abetting the crime of aiding and abetting the defendant 1's act by strengthening the resolution of the crime of aiding and abetting in breach of trust and facilitating such act. In light of the above legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to aiding and abetting as alleged in the ground of appeal.

C. Where a person delivers property or property gains acquired by an offender to another person in accordance with the purport of the receipt, the partial benefit does not substantially belong to the offender, and thus, it cannot be confiscated or collected from the offender (see, e.g., Supreme Court Decisions 2002Do1283, Jun. 14, 2002). Even where the property or property gains acquired by the offender are used for the benefit of the person interested, if the detailed use is not delivered to another person in accordance with the purport that it was planned from the beginning, but was used for the original authority of the offender, the whole amount received by the offender shall be collected additionally (see, e.g., Supreme Court Decisions 9Do1900, Jun. 25, 199; 200Do440, May 26, 2000).

According to the evidence adopted by the court of first instance as cited by the court below, the court below's decision that Defendant 1 did not collect from Defendant 1 all the amount of money received by Defendant 3 and maintained the judgment of the court of first instance which collected from Defendant 3 as it is without any additional collection from Defendant 1, and it is just in the court below's decision that Defendant 1 did not collect from Defendant 3 all the amount of money received from Defendant 3 to the effect that Defendant 3 is merely a method of consuming experiment expenses, etc., in light of the above legal principles, since Defendant 3's detailed use of the experiment expenses, etc. was recognized as being used in accordance with Defendant 3's independent judgment. Thus, it is not erroneous in the misapprehension of legal principles as to additional collection.

3. As to the Prosecutor’s Grounds of Appeal

Article 30 of the Criminal Act provides that two or more co-principals jointly commit a crime. In order to constitute a co-principal, the fact that a crime is committed through functional control by a co-principal, which is a subjective element, and is required to be committed through a functional control by a co-principal, which is an objective element. The intent of co-principal is insufficient only to recognize another person’s crime but not to restrain it, and the intention of co-processing is not sufficient, and it is integrated to conduct a specific criminal act with a co-principal’s intent, and it is intended to move one’s own intent by using another’s act (see Supreme Court Decision 2004Do206, Mar. 9, 2006).

Examining the reasoning of the judgment below in light of the records in light of the above legal principles, it is just that the court below found Defendant 2 and 3 not guilty, and maintained the first instance court's measure which applied each of the above Defendants to the crime of aiding and abetting in breach of trust and aiding and abetting in the crime of aiding and abetting in violation of trust and abetting in violation of the legal principles as alleged in the ground of appeal.

4. Conclusion

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

Justices Yang Sung-tae (Presiding Justice)