Requirements for the establishment of co-principal

Article 30 of the Criminal Act

Supreme Court Decision 2008Do1274 Decided April 10, 2008 (Gong2008Sang, 708) Supreme Court Decision 2012Do12732 Decided January 10, 2013

Defendant 1 and two others

Prosecutor

Attorneys Kim Young-jin et al.

Suwon District Court Decision 2011No3977 decided February 22, 2012

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the establishment of joint principal offender

The court below found Defendant 1 and 2 not guilty of the facts charged in this case where Defendant 1 and 2 conspired with Defendant 2 in advance with Defendant 2 and Defendant 3 for the use of the mobile phone program of the victimized company’s model CDM7126 mobile phone in the course of the development of the mobile phone A10 model, A20 model, A210 model, and A210 model, and Defendant 2’s statement was not consistent, the circumstances and details of the public offering are difficult to determine, and there are parts inconsistent with the statements of the court below, and there are objective facts about addition of swap (WAP) function and bru (BRE) function, and the e-mail submitted by the prosecutor alone is difficult to recognize the facts of public offering.

Examining the reasoning of the judgment below in light of the records, the above judgment of the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles regarding the establishment of joint principal offender, or exceeding the bounds of the principle of free evaluation of evidence.

2. As to the establishment of succeeded co-principals

Article 30 of the Criminal Act provides that two or more persons jointly commit a crime. In order to establish a joint principal offender, a subjective requirement is the intention and objective requirement of joint processing, and requires the fact of implementation of a crime through functional control based on a joint doctor. The intention of joint processing is insufficient to recognize another person’s crime and to accept it without restraint, and it is not sufficient to jointly commit a specific criminal act with another person’s intent, and to shift one’s own intent by using another person’s act (see, e.g., Supreme Court Decision 2008Do1274, Apr. 10, 2008).

Examining the reasoning of the judgment below in light of the above legal principles and records, as to the prosecutor's assertion that at least Defendant 1 and 2 constituted a succeeded joint principal offender after they came to know of the misappropriation of the victim joint principal offender 2 and 3 of the court below's judgment, the court below's determination that Defendant 1 and 2 cannot be established as a succeeded joint principal offender on the grounds that they could not recognize a functional control based on the intent of joint processing with Defendant 2 and 3 of the court below's decision on the grounds as stated in its reasoning is just and acceptable. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles on the establishment of succeeded joint principal offender, by exceeding the bounds of the principle of logic

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)