Defendant

Defendant and Prosecutor

Kim Jong-Hun

Attorney Kim Young-chul (Korean)

Daejeon District Court Decision 2004Gohap2593 Delivered on December 22, 2004

All appeals filed by the defendant and prosecutor are dismissed.

1. Summary of grounds for appeal;

(a) Grounds for appeal by prosecutors (legal scenarios);

In light of the fact that the act of having another person make a person make a false confession and thereby making another person commit the crime of aiding and abetting a criminal escape constitutes an abuse of right of defense, and that the protected legal interest of the crime of aiding and abetting a criminal escape is the national judicial order, the act of aiding and abetting the criminal escape even though the other person has a relationship between the criminal and the criminal under Article 151 (2) of the Criminal Act, constitutes an abuse of right of defense, and it cannot be said that there is no possibility of expectation of lawful act. Thus, the criminal cannot escape from the liability as the crime of aiding and abetting the criminal escape.

Nevertheless, among the facts charged in the case of this case, the court below acquitted the defendant on the ground that there is no problem of abuse of defense right against the defendant, and there is no possibility of expectation, which affected the conclusion of the judgment by misapprehending the legal principles on the nature of the crime of aiding and abetting the criminal.

(b) Grounds for appeal by the defendant (unfair punishment);

The sentence of the court below is too unreasonable.

2. Determination

A. Determination on the prosecutor's grounds for appeal

On the other hand, the defendant's act of allowing another person to make a confession through a false confession constitutes an abuse of his/her right of defense and constitutes an offense of aiding and abetting a criminal escape (see Supreme Court Decision 2000Do20, Mar. 24, 2000). Furthermore, the act of inducing a third person who has no such status relationship with the criminal to commit an offense by aiding and abetting the criminal to commit an offense under Article 151 (2) of the Criminal Act constitutes also an offense of aiding and abetting a criminal escape. However, it seems to be based on the fact that the criminal or a person in a status relationship with the criminal or a person who has no status relationship with the criminal realizes the offense by using another person's act and creates a new criminal, and thus, the typical illegal act of the crime of aiding and abetting the criminal was realized at the same time as the abuse of his/her right of defense, and it cannot

However, as in the case of this case, where the criminal instigated his/her relative to flee, the person who instigated the escape of the criminal does not constitute an element of a crime because he/she is the principal, and the principal is a relative under Article 151 (2) of the Criminal Act and the principal is not punished, and the principal illegal act of the principal who led the defendant to realize his/her crime by taking advantage of another person's act and create a new criminal cannot be deemed to have been realized, and it is reasonable to view that the defendant's act of self-defense is clearly deviating from the scope of his/her act of defense

Therefore, the court below's decision of not guilty of the crime of aiding and abetting a criminal in the facts charged of this case is just and there is no error of law by misunderstanding the legal principles as to the establishment of the crime of aiding and abetting a criminal, thereby affecting the conclusion of the judgment.

B. Judgment on the grounds for appeal by the defendant

Although the defendant was sentenced to a fine for a crime such as unauthorized driving, it is not recognized that the sentence of the court below is too unreasonable because it is too unreasonable, considering all the circumstances that are conditions for sentencing under Article 51 of the Criminal Act, including the fact that the defendant committed the crime without a license again during the period of repeated crime, even though he was sentenced to a fine for a crime such as unauthorized driving

3. Conclusion

Therefore, all appeals by the prosecutor and the defendant are dismissed in accordance with Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Lee Ho-hun (Presiding Judge)