[1] Requirements for establishing a joint principal offender

[2] Criteria for the distinction between co-principal and accessories

[1] Article 30 of the Criminal Act / [2] Articles 30 and 32 of the Criminal Act

[1] Supreme Court Decision 2002Do7477 decided Mar. 28, 2003 (Gong2003Sang, 1121) Supreme Court Decision 2008Do1274 decided Apr. 10, 2008 (Gong2008Sang, 708) / [2] Supreme Court Decision 88Do1247 decided Apr. 11, 1989 (Gong1989, 781)

Defendant

Defendant and Prosecutor

Suwon District Court Decision 2012No2227 decided September 27, 2012

The conviction part of the judgment of the court below against the defendant is reversed, and that part of the case is remanded to Suwon District Court Panel Division. The prosecutor's appeal is dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. In order to constitute a joint principal offender under Article 30 of the Criminal Act, it is necessary to implement a crime through functional control based on the joint doctor as a subjective element. Here, the intention of joint processing is insufficient to recognize another person's criminal act and to allow it without restraint, and it should be one of the joint intent to commit a specific criminal act with another's intention, and it should be transferred to the execution of one's own intention by using another's act (see Supreme Court Decision 2002Do7477, Mar. 28, 2003, etc.). On the other hand, the essence of joint principal offender is a functional control by division of roles. Since joint principal offender is deemed to be a functional control by division of roles, it is distinguishable from each other in that it has no control over the act (see Supreme Court Decision 8Do12477, Apr. 11, 1989).

B. Of the facts charged against the Defendant, the summary of the facts charged regarding the violation of the Specialized Credit Finance Business Act and the fraud is as follows.

Co-defendant 1, Nonindicted 1, and Nonindicted 2 (hereinafter referred to as “Co-defendant 1”) of the lower judgment simply referred to as “original trial co-defendant 1”, and Co-defendant 1, Nonindicted 1, and Nonindicted 2 of the lower judgment referred to as “original trial co-defendant 1, etc.”) conspired to purchase and sell with the credit card, tobacco, etc. used in a foreign country, by forging the credit card used in the foreign country, and the Defendant conspired to receive the purchase cost (hereinafter referred to as “data value”) of the overseas credit card information to be forged at the request of Co-defendant 1 of the lower judgment in return for the payment of the purchase cost of the overseas credit card information to be forged (hereinafter referred to as “the purchase

Accordingly, Co-defendant 1 of the court below purchased equipment necessary for the above Article with credit card, and the defendant substituted 3.5 million won for the purchase of overseas credit card information to be forged, and Non-Indicted 1 forged 9 credit card by using overseas credit card information received from the above equipment and the non-indicted 1.

Co-defendant 1, etc. of the court below subsequently purchased tobacco, etc. equivalent to KRW 5,370,500 in total over 65 times in Young-gu, Suwon-si, and then acquired the forged credit card and acquired the tobacco, etc.

C. The lower court found the Defendant guilty of this part of the facts charged on the following grounds.

① The Defendant sent 1.5 million won among the 3.5 million won to the prosecutor’s office as the value of the material, and the Defendant made a statement to the effect that he/she would have purchased counterfeit credit cards with a stolen credit card in order to obtain a well-known item above the value of the material. In the first instance court, all of the charges were led to the confession in this part of the facts charged; ② Co-defendant 1 of the lower court consistently recognized a conspiracy relationship with the Defendant from the police to the court of the lower court; ③ even in 2008, Co-Defendant 1 of the lower court was aware of the fact that he/she was punished for committing the same several acts as this case; ④ even if the recording containing a telephone content between the Defendant and Co-Defendant 1 of the lower court appears to be difficult to deny the Defendant’s participation, the Defendant’s participation in the crime can be sufficiently recognized in collusion with Co-Defendant 1 of the lower court’s judgment; and even if he/she was aware of such fact, he/she is merely mere aiding and abetting

D. However, the lower court’s determination is difficult to accept for the following reasons.

According to the reasoning of the lower judgment and the evidence duly admitted by the lower court, the following circumstances are revealed.

① Even based on this part of the facts charged, the Defendant was not directly involved in the crime, such as fabrication and use of credit cards. At the request of Co-Defendant 1 of the lower judgment, the Defendant provided part of the funds for the crime, and only demanded the wife to purchase a prestigious gift, etc., which promised to be a marriage commemorative gift.

② At around 2007, the Defendant, who was a co-defendant 1, who was a member of organized violence, had been aware of the judgment of the court below, maintained pro ratas with Co-defendant 1 in the court below due to the business needs related to his main points that he operated. However, Co-defendant 1 in the court below, etc. did not participate in the crime of this case at the time when Co-defendant 1 in 2008 was prevented from committing the same kind of crime. Even in this case, Co-defendant 1 in the court below's judgment, etc. was merely a conspiracy to independently commit the crime and raise funds necessary

③ At the time of the Defendant’s request for the sale of stolen goods in return for providing data value, it appears that Co-defendant 1, etc. of the lower court appears to have been working for that method. Although Co-defendant 1, etc. of the lower court knew that Co-defendant 1, etc. was aware that he/she forged or used a credit card and purchased the stolen goods, etc., it cannot be found that he/she directly participated in the crime, and the criminal facts subject to prosecution of this part include the details related to the purchase

④ Co-defendant 1, etc. of the lower court agreed in advance on the distribution of profits according to a certain ratio while soliciting the instant crime. On the other hand, the sale of stolen goods, etc. requested by the Defendant should be viewed as one-time consideration for the value of the materials provided by the Defendant, and it cannot be deemed that the consideration is obtained through the commission of the crime scheduled by Co-defendant 1, etc. of the lower court.

⑤ Co-defendant 1 of the court below appears to have had considerable resistance against the defendant for various reasons related to the investigation, trial, etc. of the crime in 2008 and the crime in this case. Whether the degree of participating in the crime in this case constitutes a co-principal or not depends on the statement of Co-defendant 1 of the court below.

In this case, the evidence submitted by the prosecutor alone is insufficient to recognize that the defendant and co-defendant 1 et al. formed a crime community for committing the crime, such as fabrication and use of the credit card of this case with the co-defendant 1 et al. at the joint will, or that the defendant has moved to the execution of his/her intent by controlling the core progress of the situation leading to the above crime by stopping, blocking, or promoting, etc. It can be deemed that the defendant simply demanded the provision of funds for committing a crime and the sale of stolen articles that can be acquired through the commission of the crime, thereby strengthening the resolution of the crime, such as fabrication and use of the credit card of Co-defendant 1, etc. of the court below and

Nevertheless, the lower court, without sufficiently examining the above circumstances, acknowledged the Defendant as a co-principal of the crime by forging and using the instant credit card. In so doing, the lower court erred by misapprehending the legal doctrine on co-principal and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The Defendant’s ground of appeal assigning this error is with merit.

2. As to the Prosecutor’s Grounds of Appeal

Examining the reasoning of the judgment below in light of the records, the court below reversed the judgment of the court of first instance which found the defendant guilty and found the defendant not guilty on the charge of criminal escape among the facts charged in this case, and there is no violation of the principle of free evaluation of evidence in violation of logical and empirical rules. The prosecutor's ground of appeal is without merit.

3. Conclusion

Therefore, the part of the judgment of the court below against the defendant is reversed, and that part of the case is remanded to the court below for a new trial and determination. The prosecutor's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)