The relationship between the crime required and the crime of violation of the Cabinet Order

If a defendant's act was committed by violence, intimidation, or destruction by gathering in large numbers, such as gathering of political relief along with a large number of people and driving along a street, it shall be deemed that the offender conducted a demonstration for political purposes prohibited by the Decree No. 10. Thus, the crime of necessity and the crime of violation of the above Decree are also in a relationship of ordinary concurrent crimes under Article 40 of the Criminal Act, which corresponds to several crimes.

Articles 40 and 115 of the Criminal Act, Article 15 and 13 of the former Martial Law Act (Law No. 69, Nov. 24, 1949) (Law No. 69, Nov. 24, 1949)

Defendant

Defendant

Attorney Jeong Byung-il

Gwangju High Court Decision 82No441 delivered on January 13, 1983

The judgment of the court below is reversed, and the case is remanded to Gwangju High Court.

The defendant and his defense counsel's grounds of appeal are examined.

According to the reasoning of the judgment below, the court below determined that the defendant's act of violence, intimidation, destruction, and demonstration for political purposes by gathering a large number of people, such as carrying out a political relief with several hundreds of the military and carrying out a street along with his own political relief as stated in its reasoning, and stated that the facts constituting the crime and the facts required for the application of the law are as follows: Article 115 of the Criminal Act; Articles 15, 13, and 10 of the Martial Law (Law No. 69, Nov. 24, 1949) as the time of the act of demonstration for political purposes are concurrent crimes under the former part of Article 37 of the Criminal Act; and determined that the above two crimes are concurrent crimes under Article 38 (1) 2 of the Martial Law as the time of the act; and therefore, the defendant is punished as stated in its decision.

However, as determined by the court below, if the defendant's act was conducted by gathering a large number of violence, intimidation, or destruction by opening a political relief along with a large number of people and driving along a street, it shall be deemed that the actor conducted a demonstration for political purposes prohibited by Article 10 of the above Decree. Thus, the crime of necessity and the crime of violation of the above order shall be deemed that the single act concurrently constitute a so-called commercial concurrent crime under Article 40 of the Criminal Act corresponding to several crimes.

The court below's decision that deemed the above two crimes as substantive concurrent crimes and deemed the other crimes in its decision as concurrent crimes, and that the defendant was punished as stated in its decision shall be punished by misapprehending the legal principles of concurrent crimes and ordinary concurrent crimes, thereby adversely affecting the judgment by erroneously applying the law. Accordingly, the appeal is without merit, without regard to the remaining grounds for appeal.

Therefore, the judgment of the court below is reversed, and the case is remanded to the Gwangju High Court which is the original judgment. It is so decided as per Disposition by the assent of all participating Justices

Justices Jeong Tae-tae (Presiding Justice)