[1] The meaning of "organization for the purpose of crime" under Article 4 of the Punishment of Violences, etc. Act, and whether there is a special procedure such as the name or demotion of the organization and the formation of the organization in the formation and joining of the crime organization (negative)

[2] The elements for recognizing a new criminal organization as a separate criminal organization in the event that an existing criminal organization constitutes a new criminal organization

[3] In a crime of organizing a crime organization, etc. under Article 4 of the Punishment of Violences, etc. Act, whether one time, which is not the date and time of a crime as stated in the indictment, can be deemed as constituting a temporary crime organization and punished as guilty (negative), and the method of determining the time of organizing and joining the crime organization

[4] The meaning of "activities" as a member of a criminal organization, etc. under Article 4 (1) of the Punishment of Violences, etc. Act and the criteria for its determination

[1] Article 4 of the Punishment of Violences, etc. Act / [2] Article 4 (1) of the Punishment of Violences, etc. Act / [3] Article 4 of the Punishment of Violences, etc. Act / [4] Article 4 (1), (2), (3), and (4) of the Punishment of Violences, etc. Act

[1] [4] Supreme Court Decision 2009Do9484 Decided January 28, 2010 / [1] Supreme Court Decision 97Do1829 Decided October 10, 1997 (Gong1997Ha, 3541), Supreme Court Decision 2007Do7378 Decided November 29, 2007 / [2] Supreme Court Decision 2003Do582 Decided January 16, 2004, Supreme Court Decision 2004Do805 Decided April 23, 2004, Supreme Court Decision 2009Do1274 Decided June 11, 2009 / [3] Supreme Court Decision 2000Do4375 Decided December 27, 2005 / [209Do4779 decided May 27, 2005] Supreme Court Decision 2005Do9779 decided May 27, 2005

Defendant 1 and four others

Prosecutor

Attorney Song-seok et al.

1. Daejeon High Court Decision 2012No536 decided May 13, 2013 (Separation), Daejeon High Court Decision 2012No536 decided May 15, 2013;

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the organization of the Defendants’ criminal organization

A. In light of the fact that a group of violence is different from a legitimate group, so long as it appears that the continuous association as an organization is somewhat unstable due to its characteristics, and that the leading system is not always clear inside and outside of the country, the relationship between the members was assembled in accordance with the special rules of the group and the power as an organization or group has been exercised, and even if it appears that the relationship between the members was formed by a ship, a punishment, or a son, and that it has many cases, the group is subject to the common purpose of Article 4 of the Punishment of Violences, etc. Act that "organization for the purpose of crime" is established as a group with a minimum leading system that leads the group or maintains internal order. The crime group is established and continued in a variety of forms and so long as it is not required to be sentenced to punishment, it does not necessarily require the name or demotion of the organization with respect to its composition or accession, and it does not require any special procedure such as the formation of the organization or subscription system (see, e.g., Supreme Court Decision 200Do480, Oct. 29, 197

However, the organization of a criminal organization refers to the formation and establishment of a new criminal organization. As such, when a new criminal organization constitutes a new criminal organization using an existing criminal organization, it refers to a case where the existing criminal organization is separated from the existing criminal organization and constitutes a separate criminal organization, as it is combined with another criminal organization, and the organization can be recognized as a separate organization that is not identical with the existing criminal organization due to its complete alteration (see Supreme Court Decision 2009Do1274, Jun. 11, 2009, etc.).

Meanwhile, as the crime of constituting an organization, etc. under Article 4 of the Punishment of Violences, etc. Act is established and completed immediately by organizing an organization or a group with the intent to commit a crime under the same Act, the statute of limitations takes place simultaneously with the establishment of the crime. Since the time constituting the organization of the crime is an important element of specifying the crime and the statute of limitations on the crime has expired, even if the fact that the Defendants acted as a member of the organization of the crime is acknowledged, it shall not be permitted to recognize the date and time of the crime specified in the indictment as the date and time, unless it is recognized that the organization of the organization was constituted at the time of the crime in the indictment, and punish the Defendants of a certain time and time, not the date and time of the crime, as stated in the indictment, as long as it is not recognized that the organization of the organization of the crime itself constitutes a crime, even though it is difficult to recognize the elements of the crime requiring strict proof in light of the nature of the act, withdrawal from the organization is not free if a member becomes a member, and it is extremely difficult to expect direct evidence or evidence of the members.

B. (1) The lower court: (a) deemed that the ○○○○○ Group, including the Defendants, constitutes a criminal organization stipulated in Article 4 of the Punishment of Violences, etc. Act; (b) held Defendant 2 as two items even before June 21, 2007, prior to Defendant 1’s temporary release, Defendant 2 led ○○○○○○ Group; (b) held that the 40 number of members of the ○○○○○ Group, as of June 21, 2007, was only the 190 members who joined the ○○○○○ Group, and there was no significant change in the number of members of the ○○○○○ Group, or that there was no change in the number of members of the ○○○○○○ Group’s existing organizations to be found to have been aware of the change in the 1st ○○○○ Group’s existing organization’s organization’s organization’s organization’s organization’s organization’s organization and its organization’s organization’s organization’s organization’s organization’s organization’s organization’s organization’s organization’s participation.

C. Examining the reasoning of the lower judgment in light of the records, the lower court’s aforementioned determination is based on the aforementioned legal doctrine, and contrary to the Prosecutor’s grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the formation of a crime organization under Article 4(1) of the Punishment of Violences, etc. Act

2. As to the activities of Defendants 2, 3, and 5 as members of the criminal organization

A. Article 4(1) of the Punishment of Violences, etc. Act provides that “any person who forms an organization or group aimed at committing a crime prescribed by this Act (hereinafter “criminal group, etc.”) or joins such an organization or group or acts as a member thereof shall be punished by the following: 1. leader shall be punished by death penalty, imprisonment for life or for not less than ten years; 2. Executive officers shall be punished by imprisonment for life or for not less than seven years; 3. Other persons shall be punished by imprisonment for a limited term of not less than two years.” The above legal provision provides that “The degree of social harm and injury caused by a crime planned and organized by a criminal organization, etc. is much more serious than that of an individual, and that the crime continues to be committed or committed, regardless of whether the crime was committed or not, and thus, the legislative intent of this provision is to prevent the creation and continued existence of a criminal organization, etc. with the nature of the crime, etc., regardless of whether the crime was committed, and thus, it cannot be punished even if it is somewhat unreasonable in light of the legislative intent purport of the above provision of punishment.”

Article 4(2) of the Punishment of Violences, etc. Act separately provides for a penal provision for specific activities separate from the aforementioned legal provision for punishing members of a criminal organization. Article 4(2) of the same Act provides that where a person who constitutes a criminal organization, etc., or who joins a criminal organization, etc., renders undue influence on a criminal organization, etc., or commits a specific crime to maintain and maintain a criminal organization, etc., punishment shall be aggravated than that prescribed for such crime, and Article 4(3) of the same Act provides punishment for compelling or soliciting others to join a criminal organization, etc., and Article 4(4) of the same Act provides that an act of raising money and valuables for the continuance and maintenance of a criminal organization, etc. In full view of the contents and form of Article 4 of the Punishment of Violences, etc. Act, legislative intent, type and degree of punishment, etc., “an act of carrying out activities” in Article 4(1) of the Punishment of Violences, etc. shall not be deemed as having been carried out by a large number of members of a criminal organization, etc., such as an act of expression and punishment, etc.

B. The lower court determined that it cannot be readily determined that the motive mobilized at the public hearing of this case by a member of the ○○○○ Branch was an intervention in this right, and that it was difficult to ascertain the possibility of violent collision with residents in the public hearing and the degree of preparation therefor, and that in light of the size of the mobilized assistance staff members, etc., the Defendants’ act of active activities pursuing the continuation and maintenance of crime organizations, etc., and that the degree of contribution cannot be deemed as correspond to the coercion of joining, soliciting, and soliciting money and valuables for the continuation and maintenance of crime organizations, etc., which are acts stipulated in Article 4(3) and (4) of the Punishment of Violences, etc. Act, and that the lower court reversed the first instance judgment convicting the Defendants, and acquitted this part of the facts charged.

Examining the reasoning of the judgment below in light of the records, the above determination by the court below is based on the aforementioned legal principles, and contrary to the prosecutor’s grounds of appeal, there were no errors of exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or of misapprehending the legal principles on the activities of crime organizations under Article 4(1) of the Punishment of Violences, etc.

3. Conclusion

Therefore, the prosecutor's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)