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Defendant
All appeals by prosecutors are dismissed.
Reasons
1. Summary of grounds for appeal;
A. misunderstanding of facts or misunderstanding of legal principles (defendants) received a request from a co-defendant A of the first instance trial to harm his or her heart, and performed his or her role with his or her comprehensive instructions. As such, it cannot be said that the crime of opening a gambling place of the above A is a common principal offender for the crime of opening the gambling place.
B. In relation to the instant crime, the first instance court erred by failing to order the Defendant to pay additional collection, even though the Defendant obtained criminal proceeds related to the establishment of gambling places by receiving considerable remuneration from the co-defendant A, etc. of the first instance court, with regard to the instant crime.
(c)
With regard to the punishment for the first time (one year of suspended sentence in April) of the sentencing (the defendant and the prosecutor), the summary of the reasons for the appeal of the defendant is too unreasonable, and the prosecutor's appeal's appeal's appeal's grounds are too unfeasible and unfair.
2. Determination:
A. (i) As to the assertion of misunderstanding of facts or of legal principles, to be constituted by a joint principal offender under Article 30 of the Criminal Act, it is necessary to have committed a crime through functional control based on the joint principal’s intent as a subjective element. Here, the joint principal offender’s intent is insufficient to recognize another person’s crime and to accept it without restraint, and it should be one of the two to commit a specific criminal act as a joint principal offender and to shift to one’s execution by using another’s act (see, e.g., Supreme Court Decision 2002Do7477, Mar. 28, 2003). Meanwhile, the essence of a joint principal offender is in functional control by division of occupational roles.
As a joint principal offender is a functional control by a joint doctor, it is distinguished between the two in that the principal offender has no control over his act (Supreme Court 1 April 1, 1989).