[1] The meaning of "organization for the purpose of crime" under Article 4 of the Punishment of Violences, etc. Act, and whether special procedures, such as the name and lecture age of an organization, form of organization, etc., need to exist in organizing or joining a criminal organization (negative)

[2] Requirements for establishing a new criminal organization using an existing criminal organization

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

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

[1] [2] [3] Supreme Court Decision 2013Do6401 Decided October 17, 2013 [1/3] 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 2009Do1274 Decided June 11, 2009 / [3] Supreme Court Decision 2008Do10177 decided September 10, 2009 (Gong2009Ha, 1697)

Defendant 1 and one other

Defendants and Prosecutor

Attorney Kim Jong-hoon

Daejeon High Court Decision 2013No315 decided October 2, 2013

All appeals are dismissed.

1. As to the prosecutor's grounds of appeal

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

(1) In light of the fact that a group of violence differs from a legitimate group and it seems that the continuous association as an organization is somewhat unstable due to its characteristics, and that the command system is not always clear inside and outside of the country, and that the relationship between the members has been laid down in accordance with the rules of special oil and the power as an organization or group has been exercised, even if it seems that the relationship between the members has been carried out in advance, ex post facto, or through a punishment, and that it has many cases, the "organization for the purpose of crime" under Article 4 of the Punishment of Violences, etc. Act is established with the common purpose of the crime committed under the above Act, and the "organization for the purpose of crime" is established with a minimum command system that leads the organization or maintains internal order. Furthermore, such crime group is established and continued in a variety of forms, and it does not require a sentence. Thus, the organization's name or demotion exists with respect to its composition or joining, and it does not require any special procedure such as the formation of the organization or joining system (see, e.g., Supreme Court Decision 2008Do1090.

Since the organization of such criminal organization refers to the formation and establishment of a new criminal organization by using an existing criminal organization, in order to constitute a new criminal organization, the organization must be reconstructed in the situation where the existing criminal organization is dissatisfyed or overended, or the organization of a separate criminal organization is separated from the existing criminal organization, or by absorbing or integrating another criminal organization, the organization of the existing criminal organization should be fully changed and recognized as a separate organization that is not identical with the existing criminal organization (see Supreme Court Decision 2009Do1274, Jun. 11, 2009, etc.).

(2) The lower court determined that: (a) Nonparty 2, even before June 21, 2007, as well as Nonparty 1’s temporary release of the Defendants, led the organization of the e-mail as two items; (b) Nonparty 2, as of June 21, 2007, up to 40 trillion won of the e-mail of the e-mail from around 1990 to its members, it was difficult to recognize that the e-mail of the e-mail of the e-mail of the e-mail of the e-mail of the e-mail of the e-mail of the e-mail of the e-mail of the e-mail of the e-mail of the e-mail of the e-mail of the e-mail of the e-mail of the e-mail of the e-mail of the e-mail of the e-mail of the e-mail of the e-mail of the e-mail of the e-mail of its members.g.

(3) Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s aforementioned determination is justifiable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, misapprehending the legal doctrine on the composition of an organization of crime under Article 4(1) of the Punishment of Violences, etc.

B. As to the Defendants’ activities as a member of the criminal organization

(1) Article 4(1) of the Punishment of Violences, etc. Act provides that “A person who forms an organization or group aimed at committing a crime under this Act (hereinafter referred to as “criminal group, etc.”) or who joins such an organization or group or acts as a member thereof shall be punished by the following: 1. The leader shall be punished by death or imprisonment with prison labor for life or for not less than ten years. The executives shall be punished by imprisonment with prison labor for life or for not less than seven years.”

In light of the fact that the degree of social harm caused by a crime that is planned and organized by a criminal organization, etc. is much more serious than that of an individual's crime, and that the risk of crime or crime continues as long as a criminal organization, etc. continues to exist and maintain, the legislative purport of the above provision is to prevent the creation and continuation of a criminal organization, etc. having the nature of preparation and conspiracy of the crime regardless of whether the crime is committed or not. In light of the fact that the organization and joining of the criminal organization, etc. is an immediate crime, and the statute of limitations for such crime is completed, it is unreasonable that the act cannot be punished even if the crime is committed as a member of the criminal organization. However, even if considering such legislative intent, the part of the "act" of the above provision is somewhat abstract and comprehensive, so that the Constitution guaranteed by the Constitution does not violate the principle of clarity in the principle of no punishment without law, it should be interpreted in accordance with the Constitution in consideration of the legislative intent and degree of punishment, etc.

Article 4(2) of the Punishment of Violences, etc. Act separate from the above legal provision that punishs 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 force 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 requires another person to join a criminal organization, etc., or provides punishment for acts of soliciting money and valuables for the continuance and maintenance of a criminal organization, etc. In light of the content and form of Article 4(4) of the Punishment of Violences, etc. Act, legislative purport, type and degree of punishment, etc., “an act of carrying out an investigation by an organization, etc.” under Article 4(1) of the Punishment of Violences, etc. shall not be deemed as having been carried out as an active act of maintaining and maintaining a specific criminal organization, etc., such as the purpose and extent of participating in such act, etc.

(2) The lower court determined that: (a) the part of the activities of a criminal organization at the place of a street assistance plant cannot be readily determined that the motive mobilized at the public hearing site was an intervention in this right; (b) it is difficult to ascertain the possibility of violent collision with residents at the public hearing and the degree of preparation therefor; and (c) the Defendants’ active activities directed toward the continuation and maintenance of crime groups, etc.; (d) the degree of contribution cannot be deemed as the active activities directed toward the continuation and maintenance of crime groups, etc.; and (e) the activities of a criminal organization, which are acts stipulated in Article 4(3) and (4) of the Punishment of Violences, such as coercion to join the crime group, solicitation, and solicitation of money and valuables, cannot be deemed as corresponding to the activities of a criminal organization established at an industrial complex of tingu, and that the activities of a group, which were committed by a member of 10-2 of the lower court, could not be readily determined that there were specific circumstances about the possibility of conflict with those who participated at the public hearing site, and that the activities of 10-20-year staff members of the above industrial complex.

(3) Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s aforementioned determination is justifiable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the activities of the criminal organization under Article 4(1) of the Punishment of Violences,

2. As to the Defendants’ grounds of appeal

A. On the grounds indicated in its reasoning, the lower court determined that Defendant 1, together with Nonparty 3, can recognize the fact that Defendant 1 received money from the victim as a protection expense by putting the victim Nonparty 4 together with Nonparty 3. In light of the evidence duly admitted by the lower court and the first instance court, the lower court’s aforementioned determination is justifiable, and it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

B. On the grounds indicated in its reasoning, the lower court determined that Defendant 2 conspired with Nonparty 5, etc. to assault Nonparty 6, etc. as a dangerous object, and in collusion with Nonparty 6 and Nonparty 7 to threaten Nonparty 8 and received money as a protection expense by threatening the victim. Examining the reasoning of the lower judgment in light of the evidence duly adopted by the lower court and the first instance court, the lower court’s aforementioned determination is justifiable, and it did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules.

C. Meanwhile, according to Article 383 subparag. 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for more than ten years is imposed, an appeal on the grounds of unfair sentencing is allowed. Thus, in this case where a lower sentence is imposed against the Defendants, the assertion that the sentencing of a sentence is unreasonable cannot be a legitimate ground for appeal

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 Park Poe-young (Presiding Justice)