[1] Specific degree of the facts charged

[2] The case where the admissibility of evidence is recognized as being "when a person is unable to make a statement by appearing in the court in the official ruling under Article 314 of the Criminal Procedure Act

[3] The meaning of "criminal organization" under Article 4 of the Punishment of Violences, etc. Act

[1] The purpose of the law that stipulates the date, time, place, and method of a crime to specify the facts charged is to facilitate the defendant's exercise of his/her right to defense. Thus, it is sufficient that the facts charged are stated to the extent that it is possible to distinguish the facts constituting the elements of a crime from other facts by integrating these elements. Even if the date, time, place, and description of a crime are not specified in the indictment, it does not go against the above degree, and if it is inevitable to generalize the facts in light of the nature of the crime charged, and if it is deemed that the contents of the indictment do not interfere with the defendant's exercise of his/her right

[2] In a case where a person who needs to make a statement has a certain residence but fails to comply with summons of the court, and an interrogation at the court is impossible due to compulsory appearance, etc., or where the court fails to serve a witness summons on the person who needs to make a statement on several occasions, and thus requested the detection of the location but its location was unknown, it constitutes "when it is impossible to make a statement by attending the court in the official ruling under Article 314 of the Criminal Procedure Act." Thus, in a case where there is little room for false entry in the preparation of the contents of the statement or protocol, and there is a specific and external circumstance to guarantee the credibility or voluntariness of the contents of the statement,

[3] The crime organization under Article 4 of the Punishment of Violences, etc. Act refers to an organized body with a continuous and minimum command system, which has been formed by many specified persons under the common purpose of committing a crime under the same Act.

[1] Article 254 of the Criminal Procedure Act / [2] Article 314 of the Criminal Procedure Act / [3] Article 4 of the Punishment of Violences, etc. Act

[1] [3] Supreme Court Decision 94Do1853 delivered on September 23, 1994 (Gong1994Ha, 2907) / [1] Supreme Court Decision 91Do2085 delivered on October 25, 1991 (Gong1991, 288), Supreme Court Decision 95Do13 delivered on March 17, 1995 (Gong1995Sang, 1780), Supreme Court Decision 96Do197 delivered on May 31, 1996 (Gong196Ha, 2087) / [2] Supreme Court Decision 90Do246 delivered on April 10, 199 (Gong190, 1102), Supreme Court Decision 95Do29394 delivered on June 13, 195 (Gong1994, 2949Do196395 delivered on June 29, 2095)

Defendant 1 and Appellant for Custody

Defendant 2 and three others

Defendant and the Defendant, the Defendant, and the Defendants

Attorneys Kim Hun-Un et al.

Seoul High Court Decision 97No148, 97No5 delivered on April 9, 1997

All appeals are dismissed. The number of appeals filed by Defendant 1 and Defendant 1 and Defendant 3 shall be included in imprisonment with prison labor for 80 days out of the number of detention days after the appeal.

In determining each of the grounds for appeal by Defendant 1 and Defendant 5, Defendant 5, Defendant 3, Defendant 2, and Defendant 4’s defense counsel, respectively, they are divided into the following items for convenience and each of the corresponding parts for convenience.

1. The organization of a criminal organization and the point of violation of the Punishment of Violences, etc. Act due to joining;

A. As to the assertion that the facts charged are not specified

The purpose of the law, which stipulates the date, time, place, and method of a crime, to specify the facts charged, is to facilitate the exercise of the defendant's right to defense. Thus, it is sufficient that the facts charged are stated to the extent that it can be distinguished from other facts by integrating these elements, and even if the date, time, place, and description of a crime are not explicitly stated in the indictment, it does not go against the above degree, in light of the nature of the crime charged, and in cases where it is deemed that the general indication is unavoidable in light of the nature of the crime charged, and it does not interfere with the defendant's exercise of his right to defense, the indictment cannot be deemed unlawful since the contents of the prosecution are not specified (see Supreme Court Decisions 91Do2085, Oct. 25, 191; 94Do1853, Sept. 23, 194; 95Do13, Mar. 17, 1995, etc.).

Examining the facts charged in violation of Article 4(1) of the Punishment of Violences, etc. Act, in light of the record, in the instant case, the defendants organized or joined an organization aimed at committing the crime of violence, etc., the facts charged are clearly stated in detail the date, time, place, method, etc. of the crime, so it is possible to distinguish them from other facts of crime, and it cannot be deemed that the defendants violated their right of defense within the limit of the scope of defense. Thus, there is no error of law in the misapprehension of legal principles as to the specification of facts charged,

B. As to the assertion of violation of the evidence law

The suspect interrogation protocol prepared by the defendant on the suspect who became the defendant in the court room is admissible unless there is any reason to suspect that the defendant's statement recorded in the court room is not made arbitrarily. In case where there is a dispute as to whether the defendant's statement is voluntary, the court shall judge it free in accordance with a specific case, taking into account the form and contents of the protocol, the academic background, career, occupation, social status and intelligence of the defendant, etc. (see Supreme Court Decisions 93Do3318 delivered on February 8, 1994, 95Do208 delivered on November 10, 1995, etc.), and considering the evidence and records, each suspect interrogation protocol prepared by the prosecutor, Co-defendant 10 of the court below, and Co-defendant 111 of the court below acknowledged the facts that the above defendants signed and sealed each protocol before the court of the court below and signed it, and it seems that there is no objective doubt that the above defendants' statement was made in the suspect interrogation protocol as evidence, and it is not reasonable in light of the motive or evidence evidence.

In addition, in cases where a person who needs to make a statement has a certain residence but fails to comply with the summons of the court and the arrest warrant is not executed even if the arrest warrant is made, or where the court requested detection of the person who needs to make a statement several times and thus his location was unknown, it constitutes "when he is unable to make a statement by attending the court" as provided in Article 314 of the Criminal Procedure Act. Thus, in cases where there is little room for false entry in the preparation of the contents of the statement or protocol, and there is a specific and external circumstance to guarantee the credibility or decentralization of the contents of the statement, the admissibility of evidence of the statement is recognized (see Supreme Court Decisions 95Do523 delivered on June 13, 1995, 95Do2340 delivered on December 26, 195, etc.). Thus, according to the records, the defendants' testimony and the court of first instance, which did not admit the credibility of the statement as evidence before and after the execution of the statement by the court of first instance, but did not admit the above witness's address as evidence.

Therefore, as pointed out in the judgment of the court below, there is no error of law in violation of the evidence law, and there is no reason for both the defendants 2, 3, and 4 as to this point.

C. As to the assertion of mistake of facts and incomplete hearing due to violation of the rules of evidence

Examining the adopted evidence of the first instance court maintained and accepted by the court below (excluding the statements made by Non-Indicted 3, Co-Defendant 11, and Co-Defendant 10 of the court below in each witness examination protocol of the witness examination protocol of the first instance trial prior to the first trial date of Suwon District Court 96 seconds369, 96 seconds179) in light of the records, the fact-finding by the court below that the Defendants organized or subscribed to the crime of "○○○○○○○○○○○○○○○○○○" with the purpose of taking advantage of violence in the vicinity of the comprehensive market in Seongbuk-si, Sungnam-si, for the purpose of taking part in this right by violence. The defendants' arguments on this point are without merit.

D. As to the assertion of misapprehension of the legal principles on criminal organizations

A criminal organization under Article 4 of the Punishment of Violences, etc. Act refers to a systematic combination with a continuous and minimum command system, which has been formed by many specific persons under the common purpose of committing a crime under the same Act (see Supreme Court Decisions 94Do1853, Sept. 23, 1994; 96Do923, Jun. 25, 1996, etc.). The court below duly established the court below for the purpose of taking part in interest in the general market near Sungnam-si, by setting the role sharing of leader, executives, acting members, etc., and by setting the organization's code of conduct, etc., so this constitutes a criminal organization under Article 4 of the Punishment of Violences, etc. Act, which is a combination with a continuous and organized command system for the purpose of committing violent crimes.

Therefore, the court below is just in finding the defendants as constituting a criminal organization under the above provision of the law or joining the criminal organization, and there is no error in the misapprehension of legal principles as to the criminal organization such as the theory of lawsuit, so the defendants' arguments about this issue are without merit.

2. The risk of repeating the offense and the point of unfair sentencing

The court below held that Defendant 1 satisfied the requirements of Article 5 subparagraphs 1 and 2 of the Social Protection Act in the first head of the crime in the judgment, and still committed the crime of this case, which is a crime of the same kind or a similar crime, within a short time after the execution of the final sentence was completed, again committed the crime of the same kind or a similar crime. In addition, the court below held that the above defendant is in danger of repeating a crime under Article 5 of the Social Protection Act in light of the number of criminal records of the defendant, contents, habitualness of violence, means and method of the crime of this case, defendant's age, character and conduct, education degree, occupation, family relation, living environment, etc.

In addition, since the above defendant was sentenced to imprisonment with prison labor for less than 10 years, the above defendant cannot be deemed as a legitimate ground of appeal that the sentencing is excessive and unfair. Therefore, the defendant 1's argument on this issue is without merit.

3. Point of interference with business;

Examining the adopted evidence by the court of first instance maintained by the court below in light of the records, since it is possible to fully recognize the crime of obstruction of business as to Defendant 2, there is no error of law that affected the conclusion of the judgment by mistake of facts or omission of judgment due to a violation of the rules of evidence, such as the theory of lawsuit, etc.

4. Violation of the Food Sanitation Act;

According to the records, the crime of the Food Sanitation Act in the judgment against Defendant 3 can be fully recognized, and the facts charged are clearly stated in all the time, place, method, etc. of the crime, so it is possible to distinguish them from other facts and it cannot be viewed as infringing the above defendant's right of defense. Thus, the judgment below cannot be deemed as erroneous in the misapprehension of legal principles as to the mistake of facts due to the violation of the rules of evidence or the specification of crime, such as the theory of lawsuit

5. Conclusion

Therefore, all appeals by the Defendants are dismissed, and as to Defendants 1 and 3, part of the number of detention days after the appeal shall be included in the imprisonment of the court below against the above Defendants, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Chocheon-sung (Presiding Justice)