(영문) 부산지방법원 2008.9.4.선고 2008노2100 판결

The part of the judgment of the court below against the defendants shall be reversed. The defendant A1 shall be punished by imprisonment with prison labor for 6 months, by a fine for 2,00,000 won for the crime No. 2 in the judgment of the court below, and by imprisonment with prison labor for 6 months, by a fine for the crime No. 2 in the judgment of the court below. If the defendant A1 fails to pay the above fine, 60,000 won shall be confined to a workhouse for the same period calculated by converting

One day of detention days before the pronouncement of the judgment below shall be included in the above sentence against Defendant A2.

However, with respect to Defendant A2, the execution of the above sentence shall be suspended for two years from the date this judgment becomes final and conclusive. Of the facts charged against Defendant A, perjury shall be acquitted.

Reasons

1. Summary of the Defendants’ grounds for appeal

A. Defendant A1’s assertion

In light of the fact that Defendant A1’s economic difficulties led to each of the crimes of this case, and the principal offender was Defendant A2 at the joint criminal conduct with Defendant A2, and that Defendant A2 would not repeat the crime again while reflecting the depth of the mistake, etc., the sentence of the lower court against Defendant A with respect to Defendant A (one year of imprisonment and two million won of punishment) is too unreasonable.

B. Defendant A2’s assertion

The sentence of the lower court (six months of imprisonment) against Defendant A2 is too unreasonable.

2. Determination

A. On June 1, 2007, Defendant A1 was present as a witness of the Defendant case, such as false entry in public electronic records, etc. against Defendant A1 in the Busan District Court No. 353, which was held in Busan District Court No. 353, Jun. 1, 2007, at the Busan District Court No. 4356, Jun. 15, 2007, at the Busan District Court No. 2006, 4536, which was held in Busan District Court No. 3536, Feb. 200, Defendant A1 was present as a witness of the Defendant case, and Defendant A1 was asked from B around July 20, 2004, for a disguised marriage between South and North Korea by Defendant A1 through a new translation, which is a customer of the sampling information company operated by Defendant A1.

If a person is sexually married with a national woman, he/she shall promise B to receive the cost of preparing documents and 500,000 won per person when the report of marriage was made, promising C, D, and D to make a disguised marriage by Chinese women E, F, C, and D on the 24th of the same month, and despite being well aware of the above process, he/she shall attend and give testimony in the above court, he/she shall be called "I will not have any participation in C's report of marriage", and the prosecutor's "I will have received money from C for a long time," and the prosecutor's "I will not have received any false marriage or money because I would have closed the company's door because he/she was not good at that time," and the prosecutor's "I will not have received any false evidence against the above facts charged."

However, it is difficult to accept the judgment of the court below for the following reasons.

Article 12 (2) of the Constitution recognizes the right to refuse to testify against all citizens on the date of crime, and Article 283-2 of the Criminal Procedure Act provides that "the defendant may refuse to appear at a public trial or make statements for individual questions," the main sentence of Article 148 of the Criminal Procedure Act provides that "any witness may refuse to testify because he/she would be subject to criminal prosecution or public prosecution or be convicted of testimony in accordance with the aforementioned legal principles regarding the right to refuse to testify by falsely notifying him/her of the facts constituting a crime under Article 148." Since Article 160 of the Criminal Procedure Act provides that "the presiding judge shall inform him/her that he/she may refuse to testify before being examined, and the right to refuse to testify and the right to refuse to testify may not be deemed legitimate if he/she will not be subject to criminal punishment on the grounds that he/she would not have been subject to lawful disclosure of the right to refuse to testify by falsely notifying him/her of the fact that he/she would not have been subject to witness testimony in accordance with due process."

In addition, the court below, on June 16, 2004, rendered a suspended sentence of two years for Defendant A1 to imprisonment with prison labor for the crime of forging private documents at the Busan District Court, which became final and conclusive on the 24th day of the same month, and committed jointly with Defendant A2, etc. on the grounds that the judgment was in a concurrent relationship with each other under the latter part of Article 37 of the Criminal Act (the Busan District Court 2008 High Court 2008 High Court 871 case) and the latter part of Article 37 of the Criminal Act, and thus, it is erroneous in the judgment of the court below that affected the conclusion of the judgment.

B. As to Defendant A2

In full view of all the circumstances, including the degree of participation in each of the instant crimes with Defendant A1, Defendant A2 did not have any force other than a fine for a single-year term of age, and later, Defendant A2 appears to have committed each of the instant crimes at the latest. In full view of all the circumstances, such as the degree of participation in each of the instant crimes with Defendant A1, it is determined that the lower court’s sentence to Defendant A2 is too unreasonable.

3. Conclusion

Therefore, since the appeal by Defendant A2 is well-grounded, pursuant to Article 364(6) of the Criminal Procedure Act, and since the part against Defendant A1 is a ground for ex officio reversal, pursuant to Article 364(2) and (6) of the Criminal Procedure Act, the part against the Defendants among the judgment below is reversed and it is again decided as follows.

Criminal facts

On June 16, 2004, Defendant A1 was sentenced to a suspended sentence of one year for the crime of forging private documents at the Busan District Court, and the sentence became final and conclusive on June 24, 2004.

1. The Defendants’ co-principal

(a) Joint conduct with G. H

A1 around December 2003, Defendant A1 introduced G to Defendant A2 as the other party of disguised marriage at Defendant A2’s marriage information company located in the Busan Central Office. around December 17, 2003, Defendant A2 had Defendant Al pay a fine of 9.60,000 won of G at the Busan District Public Prosecutor’s Office’s Office located in the Busan District Public Prosecutor’s Office, and had Defendant Al cancel his designated number of times of marriage. On December 18, 2003, Defendant A and C introduced B the other party of disguised marriage to H through Daegu International Airport. On April 2, 2004, Defendant A conspired with the above public official of the State Public Officials’ Office, who was in charge of the State Public Officials’ Family Register, and had the above public official of the State Public Officials’ Family Register file a false report of marriage with the above public official of the State Public Officials’ Family Register, and then, Defendant A2, who was next to Defendant A and her husband, did not have been issued the above certificate of marriage.

(b) co-principal activities with J and K;

Defendant A1: (a) around February 2004, at the marriage information company of Defendant A2 located in Jung-gu, Busan, the central branch of Busan, introduced J to Defendant A2 as a disguised marriage; (b) Defendant A2 sent to China the Si-si, and introduced K as a disguised marriage counter-party; (c) around April 20, 2004, J completed a marriage declaration as if the female had been under normal marital relationship with K; and (d) Defendant A1, who was next, signed and sealed the above marriage declaration as a witness, submitted it to the above public official in charge of the above family registry, and submitted it to the public official in charge of the above marriage registry, and recorded it in the family registry as having been actually married by J and K. However, the J and K did not have any intention to marry, and there was no actual marital relationship. Ultimately, the Defendants conspired to make a false report to the public official in Busan, thereby making the record of the electronic marriage impossible at the time of exercising the same.

2. Defendant A1’s sole criminal conduct;

Defendant A1 is a disguised marriage hub, L is a disguised marriage recruitment book, M is a person who is engaged in a criminal conduct, in collusion with N, a shipper;

On October 11, 2005, at the office of the head of the Dong-gu Office in Busan Metropolitan City, M prepared and submitted a marriage report as if he had been a disguised marriage without the intention of marriage with the N in accordance with the mediation of Defendant A1 and L, and had the public official in charge of the above family register enter false facts in the family register information system, which is a public electronic record, as M and N actually married, and exercised it by having the public official in charge of the above family register enter false facts in the family register information system, which is a public electronic record, at that time.

Summary of Evidence

The summary of the evidence concerning the defendants' criminal facts recognized by this court is identical to the corresponding column of the judgment of the court below, except for the deletion of the part of the court below's summary of the evidence [2007 Highest 7175]. Thus, it is cited as it is in accordance with Article 369

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

(a) Article 1 (Defendants) of the Judgment;

Article 228(1) of the Criminal Code, Articles 229, 228(1), and 30 of the Criminal Code (Appointment of imprisonment with prison labor), Article 228(1) of the Criminal Code, Article 2(Defendant A1) of the Decision

Article 228(1) of the Criminal Act, Articles 229 and 228(1) of the Criminal Act

1. Handling concurrent crimes (Defendant A1);

Article 37 (latter part of Article 37 and Article 39 (1) of the Criminal Act (Mutually Article 1 of the Criminal Act and Article 37 are concurrent crimes in the latter part of Article 37 of the Criminal Act)

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Detention in a workhouse (Defendant A1);

Articles 70 and 69(2) of the Criminal Act

1. Inclusion of days of detention pending trial (Defendant A2);

Article 57 of the Criminal Act

Defendant A1’s grounds for sentencing

Although Defendant A1 had been subject to two times punishment for frauds, at around that time, Defendant A and Defendant A2 performed a role not to be somewhat weak to directly introduce G and J, a disguised marriage counterpart, in collaboration with Defendant A2, and even after that, taking into account all the circumstances that constitute the conditions for sentencing indicated in the record, such as the fact that Defendant A was committed two times or more as a disguised marriage hub and continued to commit the same crime, the sentence identical to the order shall be determined.

Of the facts charged against Defendant A1, the charge of perjury is as seen earlier, and thus, it constitutes a case that does not constitute a crime as seen earlier, and thus, a not-guilty verdict is rendered pursuant to the former part of Article 325 of the Criminal Procedure Act.