Cases where an aiding and abetting offender was erroneously punished as a co-principal;

If only one column has been leased to a person who is a damp-style medicine, and if he/she has recruited a paper mulberry manufacturing or has not processed it jointly for the manufacture and sale, he/she aiding and abetting the manufacturer of narcotics, and cannot be deemed a joint principal offender.

Articles 30, 32, and Article 38 of the Criminal Act;

Defendant 1 and two others

Defendants

Busan District Court (75Gohap202)

The lower judgment against Defendant 1 is reversed.

A defendant shall be punished by imprisonment for not less than two years and six months.

One hundred and seventy-five days of detention days prior to the pronouncement of the judgment of the court below shall be included in the above sentence: Provided, That the execution of the above sentence shall be postponed for five years from the

Defendant 2 and 3 are dismissed.

115 days out of the number of days of confinement before the rendering of the judgment shall be included in the original judgment against the above Defendants.

The gist of the grounds for appeal by the defendants' defense counsel is as follows: (a) all the defendants were unaware of the fact that the non-indicted 1 would manufacture the paper mulberry, which is a damp drug in the instant case; (b) the defendant 1 would receive 5,000 won per month from the deposit 200,000 won; and (c) the defendant 2 was aware of the fact that the non-indicted 1 would make agrochemicals in order to maintain the livelihood of 100,000 won per month; (d) the non-indicted 1 would have known that he would make agrochemicals in order to maintain the livelihood of 100,000 won per month; and (e) the defendant 3 would have delivered the above defendant 2 to the investigator, and the defendant 3 was arrested in English, and there was no conspiracy or sales of the defendant to manufacture and sell the paper mulberry as in the instant case, but the court below accepted the facts charged against the defendants, and found the defendants guilty, and thereby, erred in the judgment of the court below, and adversely affected each of the defendants.

Therefore, from the point of finding the facts of the defense counsel's assertion against the defendant 2 and 3, the defendant 2, at the prosecutor's request of the non-indicted 1, installed the manufacturing equipment equivalent to one million won necessary for the manufacture of the paper mulberry, and the defendant manufactured it with the non-indicted 1, the defendant 2, and the non-indicted 2, etc. who was put into Seoul. The defendant 3 also made the paper mulberry at the prosecutor's office, as the above persons, and the defendant was responsible for the trade mediation and was led to the defendant's escape from the back of the manufacturing equipment being operated by the defendant, while the investigator was in charge of the trade mediation and the defendant was arrested. And if the court below reviewed each evidence duly raised by comparison with the records, it is sufficient to find the facts of this case against the defendants, and there is no ground to appeal by the defense counsel, since the court below did not err by misapprehending the rules of evidence or by misunderstanding the facts.

In addition, as to the grounds for appeal of unfair sentencing against the above Defendants by the defense counsel, the court below's discretionary mitigation in consideration of all the circumstances, and the case of this case where the court below sentenced the statutory maximum punishment to the Defendants, it cannot be said that the punishment is too unreasonable. Thus, there is no ground for appeal on this point.

Then, if the court below reviewed the evidence of the defendant 1 by comparing it with the records, it can be recognized that the defendant 1 lent 1 square column of his own house to the non-indicted 1 on March 5, 1975 at KRW 5,000 per month on the deposit amount of KRW 5,000 per month (lease contract, No. 30). However, it can be found that he manufactured the paper mulberry. However, there is no trace that the defendant conspired to manufacture the paper mulberry together with the non-indicted 1, etc. or processed jointly to manufacture or sell it.

Thus, the so-called defendant's appeal is merely aiding and abetting the act of manufacturing paper paper of the non-indicted 1, etc., and even though it cannot be said that the defendant is a co-principal of the same Article, the court below's finding defendant 1 as a co-principal of the same Article does not mislead the facts or misleads the legal principles as to co-principal, thereby affecting the conclusion of the judgment. Thus, without deciding on the remaining point of unfair sentencing, the attorney's appeal will eventually return to the reasoning of this point.

Accordingly, pursuant to Article 364(4) of the Criminal Procedure Act, a party member shall dismiss each appeal filed by Defendant 2 and 3. Pursuant to Article 57 of the Criminal Act, 115 days out of the number of days of confinement before the pronouncement of this judgment against the above Defendants shall be included in the original sentence of the said Defendants, and Defendant 1’s appeal shall be accepted as reasonable, and the judgment of the court below shall be reversed and the judgment shall be rendered at the ancillary request by the prosecutor pursuant to Article 364(6) of the Criminal Procedure

(Criminal Facts)

Defendant 1, in collusion with Defendant 2, 3, and Nonindicted 1, etc., who knew that he was to manufacture and sell cryp paper mulberry, which is a damp medicine, he shall receive KRW 5,000 per month from the deposit amount of KRW 200,000,000,000 per month, from Nonindicted 1, who was aware of the fact that he was to manufacture and sell cryp paper mulberry, which is a damp medicine. The Defendant 1, from March 6, 1975 to March 11, 198, assisted Defendant 1 to install a cryp paper, such as a drieder, tester, etc., and assist him to manufacture cryp paper 1,00,000 won at the price of 90 cryp paper.

The evidence admitted in the trial court is the same as the entry in the judgment of the court below, except that each statement consistent with the facts of the trial of the defendant and the defendant 2 and the defendant 3 is added to the facts of the trial of the court below. Thus, this evidence is cited in accordance with Article 369 of the Criminal Procedure Act.

The so-called the defendant's decision falls under Article 38 (1) 1, Article 3 (1), Article 2 (1) and (3), and Article 32 of the Criminal Act, and Article 32 of the Criminal Act. The defendant's decision as to the defendant's punishment has selected a limited term of imprisonment. The defendant's punishment has been mitigated due to the end of the crime pursuant to Articles 32 (2), 55 (1) and (3) of the Criminal Act. The defendant was the first offender and the non-indicted 1's suspicion, but he did not receive any benefit from the crime. In addition, considering the circumstances indicated in the records, the defendant's punishment was considered in light of the above circumstances. Thus, from the day of punishment to the day of punishment reduced pursuant to Articles 53 and 55 (1) 3 of the Criminal Act, the defendant was sentenced to imprisonment with prison labor within two years and six months, and the defendant was sentenced to imprisonment with prison labor for not more than 17 days prior to the execution of the above sentence.

It is so decided as per Disposition with the above reasons.

Judges fixed right (Presiding Judge) Kim Jong-chul Kim Hun