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무죄집행유예선고유예
부산고법 1992. 6. 3. 선고 92노308 판결 : 상고기각
[집회및시위에관한법률위반등][하집1992(2),405]
Main Issues

(a) The case holding that the defendants' crime is deemed to have been committed mainly by the operation of an illegal organization (so-called Dogsan District) that mainly committed violent events, such as armed with a pipe or a spathic disease, attack against the police force, etc., in order to realize the stimulism under their names, and that the extent of the organization's participation, role, etc. is determined by weighting on the degree of the organization's participation and its role;

B. The case holding that if the above defendants denied all the existing systems and authority in order to establish a whole-based society in which the public interest is the principal, and the society is changed by violence, and thus, they are perceived as a extremeistic accident to realize their ideology, the so-called conviction crime has the character of so-called crime

C. Sentencing for convictions and taking into account the status of students

Summary of Judgment

(c)The criminal policy measures against convictions may be the best attempt to give up their destructive ideas and to adapt themselves to social order, but in the case of a completely known criminal offender, it is difficult to implement such measures and, however, there is no particular consideration that they have the student status in light of the social harm caused by their offences;

[Reference Provisions]

Article 51 of the Criminal Act

Escopics

Defendant 1 and 19 others

Appellant. An appellant

Prosecutor and Defendants

Judgment of the lower court

Changwon District Court Decision 9Da292, 314 through 318, decided Feb. 1, 1992

Text

1. The part of the lower judgment against Defendant 1, 2, 3, 4, 5, 6, 7, and 8 shall be reversed.

Defendant 1 and 3 are punished by imprisonment of two years, by imprisonment of three years, by imprisonment of three years, by imprisonment of one year and six months, by imprisonment of one year and six months, and by imprisonment of one year and seven years, respectively.

Among the detention days before the sentence of the lower judgment, 110 days for each of the defendants 1, 2, 3, 4, and 5, and 65 days for each of the above sentence shall be included in the calculation of the said sentence.

However, with respect to Defendant 1, the execution of the above punishment shall be suspended for three years from the date this judgment becomes final and conclusive.

The seized Dolsan District 39 Uniforms 39 (Evidence 1), 42 (Evidence 2), 286 (Evidence 3), head belts 286 (Evidence 3), Masck 7 (Evidence 4), 4 emergency warning on emergency (Evidence 5), 1 (Evidence 6), 8 (Evidence 8) shall be forfeited from the above Defendants (other than Defendant 6 and 8).

In regard to the defendant 6 and 8, a sentence of punishment shall be suspended.

Defendant 3 is not guilty of violation of the Assembly and Demonstration Act of April 29, 1991 among the facts charged in the instant case.

2. Each appeal filed by the Prosecutor against the Defendant 1, 9, 10, 11, 12, 13, 14, 6, 15, 16, 17, 18, 8, and 10, 11, 4, 12, 5, 13, 14, 15, 16, 17, 7, 18, and 19 are all dismissed.

Reasons

1. Summary of the grounds for appeal by the Defendants (excluding Defendant 9) and their defense counsel

A. As to the violation of the Assembly and Demonstration Act by Defendant 3, 16, and 5, Defendant 3

Defendant 16 asserts that Defendant 16 was guilty of violating the Assembly and Demonstration Act on September 11, 1991 and September 17 of the same year, and Defendant 5 did not participate in each assembly and demonstration on May 11, 1991. However, the judgment of the court below affirmed the facts charged under the premise that the above Defendants participated in each assembly and demonstration on September 11, 1991.

B. As to the violation of the Punishment of Violences, etc. Act by the Defendants

From this point of view, there were frequent violence incidents between the above candidates and the above candidates at the time of the election of the president of the university in the area south of this case. On October 10, 191, in the election of the president of the Korean University, Non-Indicted 1, who was the candidate for the sports at the above university and the scambling of the scambling, despite the fact that there was an assault to the other party candidates, i.e., the remaining members of the scambling in the open election campaign at the above university, and the above scambling of the court below's decision that there was no violence during the election of the above 1st of the victims. The above 1st of the 1st of the 6th of the 1st of the 1st of the 5th of the 1st of the 1st of the 1st of the 1st of the 1st of the 1st of the 1st of the 1st of the 1st of the 3th of the 2nd of the above 3th of the 1st of the election.

C. As to the lower court’s sentencing against the Defendants

The court below determined the sentencing of the Defendants on the ground that the Defendants’ crime of this case was low by the Dogggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggsgggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggg

2. Grounds for appeal against the prosecutor’s defendants

Even upon examining only the Defendants’ acts, the Defendants led to illegal assemblies by using human life tools, such as chain pipe, spady disease, stone, etc., and the Defendants committed an act of violence by putting in the place of election of all students at other universities and colleges. Furthermore, the above Doggggsan District, to which the Defendants belong, was spad against public agencies such as the Jinju Culture Broadcasting 1, police station 1, police station 2, and police box 3 times during the year 191. The police officers of the Jinju Police Station intending to arrest Nonindicted 12 of the president of the total student group in the year 91 where the instant case was pending, without any discrimination, leading the police officers of the Jinju Police Station intending to arrest Nonindicted 12 of the president of the total student group in the year 91 where the instant case was pending, making it extremely dangerous for the Defendants to be a member of the organization, and thus, the judgment of the lower court cannot be denied.

3. The background of the case and the body of the so-called branch of the local association

As seen at the time of the original adjudication, as a typical student movement case exposed to the historical problems of our society, the party members were to first examine the background and nature of the instant case and the substance and nature of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch

In our history, the role of student movement has been developed and its achievement can not be overlooked. They resisted from Germany and France at once, and according to the progress of the times, they provided the driving force to improve the old-age thinking and practices by presenting a new accident required for political and social fields. However, under the state of the small amount of money in which the government was launched by the direct election of the people and the guarantee of the press and other freedom of expression is significantly improved, the student movement in Korea, which has been malicious by the so-called exercise, is led by the extremeism or the over-divists who want to change society even by using violence, and their anti-social violence has reached the extent that our society oriented toward a free society is not implied.

In light of the records, the following facts are recognized (in light of the circumstances in which the defendants acknowledged the establishment of each protocol of examination of the suspect against the defendants in the prosecutor's office and the arbitrity of each protocol of examination of the suspect against the defendants in the prosecutor's office, it does not appear that the prosecutor mobilized advisory and coercive means in investigating the defendants as to the arbitrity of the arbitrity).

In other words, the branch association to which the defendants belong is organized by each university bound by the so-called council for the representatives of students at the national university, which is a nationwide organization. Nonindicted 3 and 4, who are the former president and the chief of the society of the general council of students at the ordinary university, have been organized by putting up Nonindicted 2, who is the former president, and the former president, on behalf of Nonindicted 2. The organization is organized by 1,2,3 units and reserve units, goods transport units. The first branch ledger is organized by Defendant 9, the latter members, approximately 25, the latter members, approximately 15, the latter members, and approximately 15, the latter members, the third branch commander, and the latter members, and the latter members, the latter members, at the time of recommendation, shall be assigned to the former members, and the latter members, the latter members, and the latter members, at the time of appointment of the latter members, shall be subject to the direction of the former members, and the latter members, the latter members, and the latter members, the latter members, who shall be the latter members.

According to Defendant 9’s statement at the prosecutor’s office, the code of conduct for the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the sub-council of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the sub-council of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the

In the way of joining the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the army, the commander directly or through the recommendation of the commander of the unit, participated in the assembly or demonstration, and individually contacted persons who have strong scrifies (i.e., whether they belong to the group of the members or not), and upon receiving a written pledge or an oral promise, Nonindicted Party 2, the commander of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the local assembly of this case, he had been subject to the command of the members of the branch of the two branch of the branch of the branch of the military.

According to the above facts, it is recognized that the Dogsan Complex temporarily appeared at the time of the assembly and demonstration of ordinary university students, not only at each time, but also at each organization with the code of conduct and living rules as well as the organization. In light of the code of conduct and living rules, the nature of the assembly and demonstration in this case, and the violence situation in the Jinju junior college, etc., the Dogsan Complex has been in charge of leading police officers who suppress and suppress illegal assemblies and demonstrations at least, leading police officers, and leading police officers in the suppression of such assembly and demonstration, and leading police officers not to have access to such assembly and demonstration, and leading police officers to play a role of leading police officers not to have access to such assembly and demonstration. In this sense, Dogsan Complex has not been able to escape from violence in the sense that it is an armed force operated by the core minority who resisted with public power to realize the evamaticism under the name of the United States.

In relation to the above recognition, some defendants intend to deny not only the fact of joining the organization, but also the substance thereof, and the remaining defendants have joined the organization, even if they have joined the organization above, they dispute whether it is irrelevant to the concept or ideology of sudic or public expenses. However, at the time of the event, the defendants do not deny the fact that the relief, "I am Hadd Had't Had't Had't Had't Had't Had' Had' Had' Had't Had' Had' Had' Had' Had't Had' Had's Had' Had's Had's Had's Had's Had's Had's Had's Had's Had's Had's Had's Had's Had's Had's Had' Had's Had's Had's Had's Had'.

4. Determination on the grounds for appeal

(1) First, prior to the judgment on the grounds of appeal by Defendant 2 and the grounds of appeal by the prosecutor against the above defendant, it is clear that the above defendant was adult after the appeal was filed on February 28, 1972, and thus, the above defendant cannot be viewed as a juvenile and the part against the above defendant among the judgment of the court below which rendered a non-scheduled sentence as to the above defendant cannot be maintained in this respect.

(2) Of the facts charged in the instant case by Defendant 3, the reasons for appeal by the mistake on the violation of the Act on the Assembly and Demonstration from April 29, 191 were examined, and the Defendant did not have participated in the above assembly and demonstration from the prosecution to the prosecution, and there is no evidence to acknowledge it.

Nevertheless, the judgment of the court below which found the above defendant guilty of the violation of the Assembly and Demonstration Act on the above date and it cannot be punished at this point. Thus, the judgment of the court below which reversed the part of the judgment of the court below and rendered a new judgment without considering the remaining grounds for appeal.

Then, examining the grounds for appeal for misconception of facts as to the violation of the Assembly and Demonstration Act by Defendant 16 and 5, and the various evidences duly adopted by the court below after examining the evidence in light of the records, it can be sufficiently recognized that the facts charged against Defendant 16-9.11, September 1, 1991, and May 11, 5 of the same year, which were decided by the court below, were in violation of the Assembly and Demonstration Act by Defendant 16-5, and there is no other error as argued in the arguments in the process of fact-finding by the court below, even if examining the records.

(3) We examine the grounds for appeal as to the violation of the Punishment of Violences, etc. Act by the Defendants.

Although Defendants denied the above crime in the grounds of appeal as seen earlier, in light of the records, the following facts are recognized after examining the various evidences duly adopted by the court below.

원심판시 지리산결사대의 대장이자 경상대학교 총학생회 사회부장인 공소외 2는 지리산결사대의 대장으로서 1991.10.10. 14:00경 그 대원인 피고인들을 비롯한 33명을 위 대학 사범대학 건물 뒷편 잔디밭에 집결시켜 놓고, 같은 날 진주전문대학 총학생회장 선거에 출마한 소위 운동권이 지원하는 기호 2번의 공소외 1이 당선되면 기호 1번 후보 공소외 8의 운동원으로부터 폭행을 당할 우려가 있다면서 지리산결사대원들이 위 대학에 가서 공소외 1의 신변을 보호하라고 지시하였다. 이에 그 예비역 소대장인 피고인 1의 인솔하에 피고인 9, 11, 16, 13, 17 등은 공소외 2가 내주는 길이 1미터 가량의 쇠파이프42개(증 제2호), 최루탄 등의 범행도구를 나누어 갖고 일행들과 진주전문대학에 이르러 위 대학당국의 허락을 받지 않고 삼삼오오 분산하여 정문과 후문을 통하여 위 대학 씨동 101호 강의실에 침입하였다. 그때는 투표가 끝나고 개표가 시작될 무렵이었는데, 피고인들 일행의 이상한 태도를 눈치챈 위 진주전문대학생 피해자 공소외 13, 14, 15, 16 등 10여 명이 위 강의실에 가 피고인들 및 그 일행에게 왜 남의 학교에 들어왔느냐며 빨리 나가라고 요구하여 시비가 벌어졌고, 피고인들의 일행인 성명불상자가 최루탄을 던진 것을 시발로 피고인 9, 16, 13, 공소외 9 등 20여명은 미리 준비해 간 쇠파이프를 집어 들고 위 피해자들을 때렸으며, 그 와중에서 피고인들의 일행인 공소외 10 등도 위 피해자 등으로부터 맞아 부상하게 되었다. 위 싸움사실이 순식간에 위 대학생들간에 알려지면서 피고인들 및 그 일행과 대항해서 싸우는 위 전문대학생의 숫자가 불어났고, 마침 위 대학교직원인 공소외 11 등의 중재로 피고인들 일행으로부터 위 범행도구를 제출받고 서로 싸움을 끝내게 되었다.

As revealed by the above facts, if the defendant and 33 persons working in the above junior college jointly intrudes on the lecture room of the above junior college, it constitutes "an act that intrudes on the building by force under Article 3 (1) of the Punishment of Violences, etc. Act" as in the time of the original trial, and the so-called "an act that intrudes on the building by force under Article 3 (1) of the same Act," and the so-called "an act of assaulting or inflicting an injury on the victim by force under Article 3 (1) of the same Act." In addition, in light of the process of fighting and the process of such fighting, it cannot be said that the above violence committed by the defendants and the defendants, and the others' legal interests under Article 21 of the Criminal Act,

(4) We examine the lower court’s sentencing.

In addition to considering the aforementioned various conditions, the sentencing of the instant case against the Defendants should also be taken into account the following conditions indicated in the records of the instant case.

First, it cannot be overlooked that the social damage caused by the instant crime by the Defendants was significantly high in that it caused disorder in local areas and the state of public peace and order confession (the assembly and demonstration by the Defendants were committed as part of the nationwide exercise). In light of the acts of disturbance of various violent social order, such as habition and fire prevention against public agencies, as pointed out in the grounds of appeal by the prosecution, the Defendants’ crime against the Defendants can not be seen as unhulled so far as joining or participating in such organization itself is recognized.

Second, as the superior organization of our society based on the free democracy system is not suitable for realizing its justice, the Defendants' basic framework of our society based on the so-called sub-lease is all denied the existing system and authority in order to establish a society in which the public interest is the principal state, and the society is perceived as a extreme accident that attempts to realize its ideology by changing the society through violence.As clearly revealed in the process of the party council's deliberation, some Defendants expressed a new belief that they were armedly supported by their anti-social violence, and almost all of the defendants do not seem to have any counter-competence in relation to the crime of this case.

Third, considering the type of the crime in this case, some defendants have the character as the so-called conviction crime. Criminal policy treatment for convictions can be said to be the best efforts to give up destructive ideas that they have, but in the case of a completely friendly criminal offender, such measures will be difficult to implement. Nevertheless, it should be pointed out that in light of the social harm caused by their crimes, it is difficult for them to take special care of their students, and thus, the sentencing for individual defendants should be conducted in accordance with individual conditions.

In full view of the circumstances such as the Defendants’ age, character and conduct, intelligence and environment, motive, means and consequence of the crime, the circumstances after the crime, especially the extent that the Defendants repented into the court below and the court of the case, the part on Defendant 1, 6, and 8, among the sentence imposed by the court below, is deemed to be too heavy as the above Defendants’ point out, and the part on Defendant 4, 5, and 7 is deemed to be too minor as indicated in the prosecutor’s point of view. However, the sentencing of the court below on Defendant 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, and 19 is deemed to be too harsh or unreasonable as it was against the prosecutor’s point of view.

5. Conclusion

Therefore, the part of the judgment of the court below against Defendant 2 is ex officio, and the part against Defendant 1, 3, 6, and 8 is reversed by accepting the above reasons for appeal by the above defendants (the prosecutor's appeal against the above defendants except Defendant 3 is without merit), and the part against Defendant 4, 5, and 7 is reversed by accepting the reasons for the above appeal by the prosecutor (the above defendants' appeal is without merit). Accordingly, with respect to the above reversed part, the party members are again decided as follows after pleading. The appeal against the above defendants 10, 11, 12, 13, 14, 15, 16, 17, 19 and the prosecutor's appeal against the above defendants and the defendant 9 are dismissed as all of them are without merit.

6. Judgment of party members on the reversed part

Criminal facts and summary of evidence

Criminal facts and the summary of evidence against Defendant 1, 2, 3, 4, 5, 6, 7, and 8 recognized as a party member are identical to those of the lower judgment, except for the cases in which part of the criminal facts at the time of original adjudication is affirmed as follows. Thus, they are cited as it is.

1. The part of the criminal facts stated in Paragraph 4 that "Defendant 3" and the part that "Defendant 3 deleted from the old-age regime's departure from the old-age regime, withdrawal from the old-age society, and removal from the outer part of the brush," stating that "the defendant 3 goes out of the outer part."

1. Of the criminal facts stated in paragraph (10) of the same Article, the part of Defendant 3, “Defendant 3, while monitoring the roads of Samcheon-do, Gyeongcheon-do, and Suncheon-do, shall be deemed as Defendant 3 observe the roads of Samcheon-do, Samcheon-do, and Defendant 5, “Defendant 5,” respectively, shall be deemed as Defendant 5, as Defendant 5, as Defendant 5, as “the adjoining stone, stone, etc.”

1. The portion of the criminal facts stated in paragraph (12) of this Article, "election place", and "non-party 1, elected," shall be deemed "in the election," respectively, and the part "non-party 1, elected," respectively;

Application of Statutes

1. Article applicable to criminal facts;

Articles 19(4) and 5(1)2 of the Assembly and Demonstration Act; Article 30 of the Criminal Act; Articles 3(1) and 2(1) of the Punishment of Violences, etc. Act; Article 319(1) of the Criminal Act

Articles 3(1) and 2(1) of the Punishment of Violences, etc. Act, and Article 257(1) of the Criminal Act

Articles 3(1) and 2(1) of the Punishment of Violences, etc. Act, Article 260(1) of the Criminal Act

[Judgment of the court below] Article 30 of the Criminal Code

2. Statutory mitigation, aggravation of concurrent crimes and discretionary mitigation;

Juvenile Act Article 2 and Article 60(2) of the Juvenile Act, Article 55(1)3 of the Criminal Act (Defendant 6, 7, and 8)

In the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (in the case of Defendant 2, the punishment against the Defendant 1, 3, 4, 5, 6, 7, and 8, the punishment against the Defendant 1, 3, 4, 5, 6, 7, and 8 shall be aggravated)

Articles 53 and 55 (1) 3 (except for the defendants 4, the rest of the defendants except the defendants are the primary offenders and the errors are divided)

Articles 2 and 60(1) of the Juvenile Act (Defendant 7)

Articles 2 and 60(3) (Defendant 6, 8)

3. Calculation of days of detention, suspension of execution of sentence, confiscation and suspension of sentence;

Criminal Act (Defendant 1, 2, 3, 4, and 5) Article 57 (Defendant 1, 2, 3, 4, and 5)

Article 62(1)(Defendant 1’s above circumstances)

Article 48(1) (excluding the defendants 6 and 8) Article 59(1) (excluding the above defendants 6 and 8), Article 59(1) (excluding the above defendants 6 and 8, taking into account the above circumstances into account; the suspended sentence, among the days of detention before the sentence of the original judgment of one year, shall be included in 110 days for the defendant 6; and 65 days for the defendant 8)

Parts of innocence

Of the facts charged by Defendant 3, the above Defendant conspired with Co-Defendant 1, 9, 9, 4, and 8 on April 29, 191, from around 14:40 to 15:40 on the same day, took part in the National Assembly Democratic plaza of the above ordinary university, including 400 students, at the same time, in the resolution for the eradication of the violent police rules and the old-age regime held by the general school conference from around the above ordinary university from around 14:40 on April 29, 191, and then Defendant 1 did not have a 200 fire-fighting disease, with 2,40 stone straws, 10 to 2,400, and there is no clear evidence that Defendant 4 or 500 of the above facts charged, and there is no clear evidence that Defendant 4 or 500 or more of the above facts charged, and thus, Defendant 4 or 500 out of the open-to-end emergency rescue regime.

Judges Park Jong-dae (Presiding Judge)