[1] The meaning and purpose of "criminal organization" under Article 4 of the Punishment of Violences, etc. Act and the degree of specification

[2] The case holding that it constitutes a "criminal organization" under Article 4 of the Punishment of Violences, etc. Act

[3] Whether double punishment can be deemed to be double punishment in a case where an additional indictment is made for joining a separate criminal organization after joining a single criminal organization (negative)

[1] Even if a group of violence is different from a legitimate group and it seems that the continuity of association as an organization is somewhat unstable due to the characteristics of the crime group, and even if the command system seems not to be clearly clear inside and outside of the country, the relationship between the members was assembled in accordance with the rules of special oil, and the group has been formed, and the power as an organization or group has been exercised, the organization for the purpose of crime under Article 4 of the Punishment of Violences, etc. Act has to be equipped with a minimum common command system that leads the organization or maintains internal order, under the common purpose of the crime committed by many and specified persons, and as long as it aims to commit a crime under Article 2 (1) of the above Act by means of violence, it is not necessary to specify whether it is intended to commit a crime among them.

[2] The case holding that, when the defendant et al. decided to form an organization that is a chain of conduct, the defendant et al. may play a so-called 's 's fighting team' in which force is overwork or violence is exercised immediately at the scene, and if the defendant et al. set a code of conduct to determine the division of duties among the members of the organization, and establish a deceptive scheme order among the members of the organization as a substitute for the order of age; and if the defendant et al. put a fighting at an entertainment establishment or gambling place, which is managed by the organization while keeping dangerous weapons such as down in a dormitory, such as sprink, etc. in a camp, and if the defendant et al. were to conduct training for training assistant staff members and escape from the organization, the division of duties among them is established in the order of age; and if the operation funds, such as organization and operation funds, etc. are collected from the office of the head of an entertainment establishment, etc. through the division of violence and punishment of the members of the above organization; and

[3] The crime of organization of an organization, etc. under Article 4 of the Punishment of Violences, etc. Act shall be established immediately by forming or joining an organization or group for the purpose of committing a crime under the same Act, and shall be established immediately and completed simultaneously. Thus, it shall not be deemed double punishment on the ground that the defendant was additionally prosecuted for joining a separate criminal organization after joining the association for the purpose of committing a crime under the same Act.

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

[1] Supreme Court Decision 91Do739 delivered on May 28, 1991 (Gong1991, 1834), Supreme Court Decision 91Do2527 delivered on December 27, 1991 (Gong1992, 816), Supreme Court Decision 94Do1853 delivered on September 23, 1994 (Gong1994Ha, 2907), Supreme Court Decision 96Do923 delivered on June 25, 1996 (Gong196Ha, 2418), Supreme Court Decision 97Do1097 delivered on July 11, 1997 (Gong197Ha, 2581) / [3] Supreme Court Decision 94Do1963 delivered on September 25, 1992, 193 (Gong194, 1929Do193939 delivered on September 19, 1992)

Defendant 1 and 11 others

Defendants

Attorneys Park Jong-soo et al. and five others

Daegu High Court Decision 97No117 delivered on June 28, 1997

All appeals are dismissed. With respect to Defendants 1, 2, 3, 4, 5, 6, 7, and 8, 80 days of detention days after the appeal shall be included in the original sentence (Provided, That with respect to Defendants 2, 1, 3, and 4 as indicated in the judgment of the court below, punishment with respect to Defendants 6, 2 as indicated in the judgment of the court below, punishment with respect to Defendants 7, and punishment with respect to the crimes listed in the judgment of the court of first instance as indicated in the judgment of the court of first instance as to Defendant 8, and punishment with respect to the crimes listed in the judgment of the court of first instance as to Defendant 8).

In determining the grounds of appeal (the grounds of appeal on each supplementary appellate brief filed by Defendants 6, their private defense counsel, and Defendant 2, Defendant 5, Defendant 6, Defendant 7, and Defendant 8, and private defense counsel by the private defense counsel of Defendants 2, Defendant 4, Defendant 5, Defendant 6, and Defendant 7, respectively (to the extent of supplement in case of supplemental appellate briefs not timely filed by Defendants 6, their private defense counsel, and Defendant 2), each of the grounds of appeal on each supplementary appellate brief filed by the public defense counsel of Defendants 2,

1. The organization of a criminal organization and the point of violation of the Punishment of Violences, etc. Act due to joining;

(1) Examining the evidence of the judgment below and the judgment of the court of first instance maintained by the court below in light of the records (excluding the records which are considered inadmissible in paragraph (3) below). Defendant 1 and 2, Defendant 4, Defendant 5, Defendant 7, Defendant 8, and Defendant 9 et al. conspired to restrain other violent organizations of the Gu and America, thereby controlling and operating staff members at the time of the Gu and America with the aim of securing economic benefits by means of employing them formally through the manager of the entertainment establishment, the head of the business division, etc., the above Nonindicted 1 and the above Nonindicted 1, the above Nonindicted 4, the above Nonindicted 1 and the above Nonindicted 1, the above executives of the court of first instance who assist and advise the above Nonindicted 1 on their behalf, and who supported the organization's activity funds, Defendant 2, Defendant 7 et al. to the head of the post office or behavior, Defendant 19 and the behavior of Defendant 19 were not unlawful as Defendant 1 and the behavior of the court below committed by Defendant 195.

(2) Even if a group of violence is different from a legitimate group and it seems that the continuous connection as an organization is somewhat unstable due to its characteristics, and even if the command system seems not to be clear inside and outside of the country, the relationship between the members was assembled in accordance with the regulations of their special oil, and the group has been formed and the power as an organization or group has been exercised, the organization whose purpose is to commit a crime under Article 4 of the Punishment of Violences, etc. Act is to commit a crime under the joint purpose of committing a crime under the above Act, and is to be equipped with a minimum command system leading the organization or maintaining internal order (see, e.g., Supreme Court Decisions 91Do739, May 28, 1991; 96Do923, Jun. 25, 1996); and 201Do1297, Jun. 15, 197).

As legally determined by the court below, the defendant et al. decided to form an organization with two sub-party 1 as one of the two sub-party 1; to set a code of conduct; to set the two sub-party 1 ; to set the division of duties among the members of the organization; to set the order of deceptive scheme among the members of the organization in the order of age; to set up a dormitory and maintain a group life as a substitute in the order of age; to set up a fighting at an entertainment establishment or a gambling place managed by the organization while keeping dangerous weapons such as down in the camp, such as down a pipe in the camp; to set up a 10-day group with power at the scene or exercising violence; to set forth 19-year group with 40-year group; to set up 9-year group with the above 9-year group with the aim of training assistant staff; to set up a 9-year group with the aforementioned 9-year group with the aim of organizing the above 9-year group with the aim of force or exercising violence; and to set up the 9-year group of defendant 2.

(3) In light of the records, the court of first instance that denied the crime in an investigative agency and recognized the facts charged in the court of first instance, or that the prosecutor prepared the defendant 9, 10, 11, 2, 3 (before separation), and 4 of each protocol of examination of the suspect against the co-defendant 4 of the first instance trial and each protocol of statement against the defendant 9 and the prosecutor prepared against the defendant 10 of the first instance trial cannot be found to be non-reco-defendant 1 of the facts charged, and thus, the court below's decision that adopted it as evidence is just.

However, according to the records, among the evidence adopted by the court below and the court of first instance that the court below maintained, each protocol of examination of the suspect about the non-indicted 2, 5, 7, etc., prepared by the prosecutor, Kim Jong-tae, and the above protocol of examination of the suspect about the ground iron was not consented to being admitted as evidence, and since it was not admitted to be genuine by the person making the original statement at a preparatory hearing or during a public trial, each protocol of examination cannot be admitted as evidence against the defendants who did not agree to be admitted as evidence, but the court below's explanation of each protocol of examination as evidence against the above defendants 2, 5, and 7 as evidence cannot be deemed to have committed an unlawful act in misunderstanding the legal principles as to the admissibility of evidence, and therefore, there is sufficient reason to admit the criminal facts of violation of the Punishment of Violence, etc. by organizing the above defendants' organization. Thus, the illegality of the evidence of each protocol of this case as mentioned above does not affect the conclusion of judgment.

(4) Article 4 subparagraph 2 of the former Punishment of Violences, etc. Act (amended by Act No. 4294 of Dec. 31, 1990) cannot be deemed to violate the basic principles of the Constitution, such as the principle of no crime without the law, the principle of equality, the principle of proportionality, and the principle of excessive prohibition (see Constitutional Court Order 95HunBa50 delivered on March 27, 1997). The measures to which the court below applied the above provision to Defendant 4's criminal facts of this case are just, and there are no errors of law as pointed out by the theory of lawsuit.

(5) The organization of an organization, etc. under Article 4 of the Punishment of Violences, etc. Act shall be established immediately by forming or joining an organization or group for the purpose of committing a crime under the same Act, and shall be an immediate crime completed at the same time (see Supreme Court Decision 94Do2752, Jan. 20, 1995). Thus, the organization of an organization, etc. under Article 4 of the same Act shall not be deemed double punishment on the ground that the defendant 3 was admitted to a separate criminal organization after becoming an organization for the purpose of committing a crime under the same Act.

(6) Therefore, there is no reason to hold the arguments by Defendants 1, 2, 3, 4, 5, 6, 7, 8, and 10 on the violation of the Punishment of Violences, etc. Act due to the organization and joining of the crime organization.

2. Violation of the Punishment of Violences, etc. due to an injury, violence or destruction, interference with business, or escape of an offender;

Examining the adopted evidence in the judgment below and the judgment of the court of first instance maintained by the court below in light of the records, each of the above defendants 2's injury to the victim 1, injury to the victim 5's victim 2, injury to the victim 3, etc., the defendant 1, 5, 9, and 10's injury to the victim's injury in the apartment complex, obstruction of duties of the defendant 1, 5, and 10's injury to the victim's injury in the apartment complex complex, obstruction of duties of the defendant 7 and 8's injury to the victim's injury to the victim's 4, etc., damage to the defendant 2, 7, and 8's injury to the victim 5, damage to the defendant 7 and the defendant 7's injury to the victim 6, injury to the defendant 7's victim 9, and delivery of 1,000,000 won to the defendant 9 for escape, and all of the measures of the court below's determination of facts are justified.

Therefore, there is no reason for both Defendant 2, Defendant 5, Defendant 1, Defendant 9, Defendant 10, Defendant 7, and Defendant 8’s arguments on this point.

3. Possession of a murderer;

Examining the evidence admitted by the court below in light of the records, the facts charged by the murderer of this case against Defendant 6 (hereinafter referred to as Defendant only in this paragraph) can be fully recognized, and the court below did not err in finding the facts or incomplete reasoning by finding evidence contrary to the empirical and logical rules as pointed out in the court below's theory.

In short, in light of the fact that the Defendant reported Nonindicted 2 as the murderer of this case to the police station immediately after the occurrence of the murder incident, and that Nonindicted 2 made favorable statements to the Defendant, the above Nonindicted 2, despite the fact that the Defendant’s investigation agency, which was the evidence of the prosecution, was insufficient to believe all the statements in the original court since the investigation agency of Defendant 9, which was the evidence of the charge of murdering the Defendant, the lower court’s belief is nothing more than mere criticism of the adoption of evidence and the recognition of facts, which are the exclusive authority of the fact-finding court, and thus, it cannot be accepted. Accordingly, the issue of Defendant 6 as to this point is without merit.

4. The point of unfair sentencing

In light of all the circumstances that the lower court’s sentencing against Defendant 6 is too unreasonable, the lower court’s sentencing against the above Defendant and his defense counsel is deemed appropriate in light of the following circumstances: (a) the determination of the lower court’s punishment against the above Defendant is extremely unfair; and (b) there is no other significant reason to recognize that the amount of the punishment is extremely unfair; and (c) the Defendants and defense counsel’s assertion that the lower court’s punishment against Defendant 1, Defendant 2, 5, 7, 9, 10, 11, and 12 is too excessive, cannot be deemed a legitimate ground for appeal in the instant case for which the lower court’s punishment of less than 10 years was imposed.

Therefore, the issues of Defendant 1, Defendant 2, Defendant 5, Defendant 6, Defendant 7, Defendant 9, Defendant 10, Defendant 11, and Defendant 12 as to this point are without merit.

5. Conclusion

Therefore, all of the appeals by the defendants are dismissed, and part of the detention days after the appeal against the defendants 1, 2, 3, 4, 5, 6, 7, and 8 is included in the principal sentence of the above defendants (Provided, That the punishment against the defendants 2, the punishment against the crimes of Articles 1, 3, and 4 in the judgment of the court below, the punishment against the defendants 6, the punishment against the crimes of Article 2 in the judgment of the court of first instance against the defendants 7, the punishment against the crimes of Article 1 in the judgment of the court of first instance against the defendants 8, and the punishment against the defendants 8 in the judgment of first instance). It is so decided as per Disposition by the assent of all participating Justices

Justices Chocheon-sung (Presiding Justice)