Defendant 1 and two others

Defendants and Prosecutor

Madmonism

Law Firm L&A, Attorneys Choi Ho-ho et al.

Changwon District Court Decision 2007 High Court Decision 2784, 2959 (Consolidated) Decided February 15, 2008

The judgment of the court below is reversed.

Defendants are not guilty.

1. Summary of grounds for appeal;

(a) Fact-finding (Defendants)

The Defendants did not have reduced or concealed gambling cases with Nonindicted 5’s solicitation. Defendant 1 and 3 conspired with Nonindicted 9, 10, and 11 in collusion with Nonindicted 9, 10, and 11, and there was no fact that they prepared false letters of arrest of flagrant offender, written confirmation, written consent for voluntary behavior, etc. Therefore, the judgment of the court below convicting the Defendants by recognizing the facts charged against the Defendants as they were, is erroneous of law.

B. Unreasonable sentencing

(1) Defendants

The respective sentences of the lower judgment against the Defendants (Defendant 1: 1: 10 months of imprisonment; 2 years of suspended sentence; 8 months of suspended sentence; 2 years of suspended sentence; 3: Imprisonment with prison labor for 6 months and 2 years of suspended sentence) are too unreasonable.

(2) Prosecutor (Defendant 1 and 2)

The respective forms of the judgment of the court below against Defendant 1 and 2 are too unhued and unfair.

2. Summary of the facts charged and the judgment of the court below

A. Summary of the facts charged

(1) The Defendants’ abandonment of duty

Defendant 1 and 3 are police officers belonging to each ○○ Police Station and Defendant 2 are police officers belonging to each ○○ Police Station.

At around 03:15 on April 27, 2007, Nonindicted 9, 11, 18, and 10, etc., the police officers belonging to the △△ District, who were Defendant 1, 3, and △△△△ District, arrested 21 gambling suspects as flagrant offenders, and seize 7.7 million won on the following day, by up to 04:20 on April 27, 200, Nonindicted 16's house located in the ○○○○○○○○○ △△-si, which is the gambling site, as a police officer belonging to Defendant 1, 3, and △△△△ District. At that time, Nonindicted 1, 6, 7, and 19, the police officers belonging to the ○○ Police Team, who were the police officers belonging to the ○○○ Police Team, were 21 persons suspected of gambling, who were in the △△

At the time of sudden drinking at the gambling site, Nonindicted Party 2, a person suspected of gambling, was discovered to escape through toilets, and was discovered to Nonindicted Party 11, while gambling site, there was a gold equivalent to KRW 7.7 million in the gambling site. Nonindicted Party 20, a person suspected of gambling, was involved in the gambling site to △△△△△△, stated that he was gambling by all persons who were at the site of gambling, and that Nonindicted Party 20, a person suspected of gambling, was gambling, and that there was a total of KRW 6.15 billion in the gambling site, which was concealed by Nonindicted Party 21 and 12, a person suspected of gambling in △△△△△△△△, was found, and thus, all 21 persons who were engaged in gambling at the site of gambling was suspected of having engaged in gambling at the site of gambling.

Therefore, the Defendants and the police officers belonging to the above △△ Group and the above △△ Group to investigate gambling cases shall prepare a written confirmation to inform all 21 persons suspected of gambling of the arrest of flagrant offenders, grounds for arrest and appointment of counsel, and the right to appoint counsel, prepare a seizure protocol on seized goods and a seizure list, transfer them to the police station for use in charge of gambling cases.

However, the Defendants and the police officers belonging to the above △△△ Group and the above △△ Team were residing in 00 and △△△△ Group, and Nonindicted 5, who had influence in the Mumban △△△ Group, claimed a preference against the gambling suspects and the gambling suspects. As such, the Defendants and the above gambling suspects, who reside in 00 and △△△△△△ Group, were able to reduce and conceal the above gambling case.

Accordingly, the Defendants and the police officers belonging to the above △△ Group and the above 4 team conspired to arrest Nonindicted Party 1 on the spot of gambling for about four hours while leaving the name of 21 persons suspected of gambling on the spot of gambling. Defendant 2 provided the police officers with an opportunity to engage in the crime on their own, and only 4 persons suspected of gambling to be punished by committing a crime. The Defendants and the above police officers did not ask them for the remaining 18 persons suspected of having been arrested on the spot of gambling (including Nonindicted Party 4 who were voluntarily present at △△△ Group) who did not release him from the above 4 and did not release him from the above 190,000 won, and provided them with an opportunity to explain the remaining 10,000 won to the police officers assigned to the △△△△△△△△△△△, who did not release him from the above 100,0000 won, and prepared a false explanatory document, including the remaining 10,000 won of the arrest of the police officers on the spot.

Accordingly, the Defendants and the police officers belonging to the above △△ Group and the strong 4 Team have deserted their duties concerning the investigation of the gambling case.

(2) The preparation and holding of false official documents against Defendant 1 and 3

Defendant 1 and 3 conspired with Nonindicted 9, 11, and 10, who are police officers belonging to the △△ District, and arrested all 21 gambling suspects as flagrant offenders. There was no notification of the reason for arrest and the right to appoint counsel against gambling suspects. Although Nonindicted 24 and 13 of them were not voluntarily carried out to the ○○ Police Station, Defendant 1 and 3 did not demand the 16, 25, 26, 27, 28, 31, 34, 37, 31, 34, 37, 41, 37, 17, 47, 17, 17, 17, 17, including Nonindicted 24 and 10, including Nonindicted 24, with the consent of lawful voluntary movement, and 16, 25, 24, and 13, 27, 31, 24, 31, 24, 24, and 31, 27, 2, and 14.

B. The judgment of the court below

The lower court found the Defendants guilty after comprehensively taking account of the macro-made evidence, after recognizing the facts charged in this case as they were.

3. The judgment of this Court

(a) Fact finding;

In full view of the evidence duly adopted and examined by the court below and the testimony of Non-Indicted 35, 36, 37, 38, 34, and 3 of the Political Party Witness, the following facts can be recognized.

(1) Defendant 1, 3, Nonindicted 9, 11, 18, and 10, who is a police officer belonging to the △△△ Police Center, was reported to the gambling, and on April 27, 2007, at around 03:15, Defendant 1, the team leader of the ○○ Police Station, called Defendant 16’s house located in the Gambling-si, Kim Jong-si (hereinafter omitted), who was the head of the △△△△△ Police Station, was arrested to take photographs of 21 gambling sites and gambling suspects, and seized gambling funds, and then 21 persons suspected of gambling were connected to the △△△△△ Group around 04:20 on the same day. around that time, at around 00, Defendant 2, Nonindicted 1, 6, 7, and 19Do-19, who is a police officer belonging to the ○○ Police Station, who was requested by the △△△ Group.

(2) While gambling suspects, who had been involved in △△ District, denied all of them, Defendant 1 requested Nonindicted 1, the team leader of △△ Team, to take over gambling suspects as they were, on the ground that the number of police officers belonging to the △△ District was less, investigation experience was insufficient, and global price was narrow, and Nonindicted 1 and Defendant 2, etc. refused to take over gambling suspects on the ground that they were dispatched to the site and did not arrest the suspect of gambling, but did not properly prove evidence.

(3) The Defendant 1 called Nonindicted 37, the head of △△△ District, and reported to the effect that his duties are in a state of paralysis by Nonindicted 39, a manager in charge of the situation of the ○ Police Station, and Nonindicted 37 called Nonindicted 1, a manager in charge of the △△ Police Station, to the effect that he will hand over his duties to a strong 4 team in the district, because it is difficult to investigate by a small number of members of the district, and that he would turn his duties to a strong 4 team in the district.

(4) 그리하여 같은 날 05:00경 피고인 1과 공소외 1은 지구대 소속 경찰관들이 강력4팀 소속 경찰관들의 협력하에 기초적인 조사를 완료한 후 강력4팀에 사건을 인계하기로 하여 강력4팀 소속 경찰관들도 지구대 내로 들어와 조사를 돕기 시작하였고, 그 과정에서 피고인 1은 도박혐의자 공소외 20으로부터 그들이 속칭 ‘도리짓고땡’ 도박을 하였다는 사실을 알아내고, 강력4팀 소속 경찰관인 공소외 19는 공소외 21이 지구대 화장실에 숨긴 200만원을, 같은 소속 경찰관인 공소외 6은 공소외 12의 상의 안주머니에 있던 415만원을 찾아내 도금으로 압수하였으며, 같은 소속 경찰관인 피고인 2는 도박혐의자들에 대하여 ‘결정이 되었느냐, 실제 도박을 한 사람은 나오라’고 추궁하였다.

(5) On the other hand, Defendant 1 and Nonindicted 1, who did not properly investigate the persons suspected of gambling and opened the instant gambling in Seoul, and Nonindicted 2, who led to the opening of the instant gambling in Seoul, made a confession by Nonindicted 3, a person suspected of gambling in a △△ region, to pay a reasonable amount of a fine. As such, Nonindicted 3, a person suspected of gambling, who was not in charge of gambling, was to be able to receive a confession from Nonindicted 8, 22, and 23, a △△△, a △△ person who was not in charge of gambling. Accordingly, Nonindicted 3 obtained consent from three persons, such as Nonindicted 8, 22, and 23, a △△△△, a person who was in charge of gambling, who was not in charge of gambling, and the police officer could not believe if he was boomed.

(6) As seen above, Nonindicted 5, who is in charge of the head of △△△ regional prosperity during the gambling process, visited Nonindicted 23’s wife Nonindicted 17 and visited the △△△△ District around 05:0 and went back to the police officer and personnel with the police officer and requesting the head of the vessel.

(7) As above, Nonindicted 6, a police officer belonging to a strong 4 team, led only four persons, such as Nonindicted 8, etc. to commit the crime, and the remaining gambling suspects still denied the crime, and instructed police officers belonging to the district team and police officers belonging to the strong 4 team to individually receive a written statement from the gambling suspects. Accordingly, the above police officers took the second floor of the district team and received a written statement, and met with each of the above police officers, and met with them individually, for example, Nonindicted 8, a police officer at the time of committing the crime, to find out whether he was guilty of committing the crime, and to have them voluntarily attend the 2nd police station at the time of his voluntary arrest. On the other hand, it was necessary to investigate whether he was suspected of committing the crime, and to prepare a written statement of his voluntary arrest by the police officers belonging to the △△△ police station at the time of his voluntary arrest by the police officers assigned to the 10th floor and the 10th floor of the police station at the time of his voluntary arrest by the police officers.

(8) Accordingly, Nonindicted 9 and Nonindicted 10 respectively prepare a written arrest of a flagrant offender under the name of Nonindicted 9 and a written confirmation under the name of Nonindicted 10 to the effect that the above four persons were arrested as a flagrant offender by notifying the grounds for arrest and the right to appoint a defense counsel. Defendant 3 and Nonindicted 11, a police officer belonging to Nonindicted 10 and △△△ Group, who denies gambling suspicion, have been prepared a voluntary behavior by 17 persons, including Nonindicted 16, 25, 26, 27, 13, 28, 29, 29, 29, 30, 30, 4, 20, 31, 32, 32, 34, 33, 12, and 17, which denies gambling suspicion.

(9) However, around that time, the police officers belonging to the strong 4 team, including Nonindicted 1, the team leader of the team, carried out 4 persons suspected of gambling and 9 persons in total, including 5 persons whose identity has not been verified, on the grounds that all 22 persons suspected of gambling cannot be connected to the police station at their night working hours, on the ground that they cannot complete the investigation within their own working hours, and set the direction for the handling of the case on the basis of a written statement for the remaining persons suspected of gambling.

(10) Accordingly, Defendant 3 returned 4,150,000 won to Nonindicted 12 who denies the suspicion of gambling under Nonindicted 6’s order. Defendant 1’s order also returned 1,190,000 won to Nonindicted 13 who denies the suspicion of gambling; Defendant 1’s order also returned 1,190,000 won to Nonindicted 13; the remainder of the money was adjusted; Defendant 10 prepared a seizure report and seizure list; and Nonindicted 6 notified Nonindicted 10 of the fact that he returned his identification card to the person whose identity was confirmed, and then summoned him.

(11) The police officers belonging to the △△ Group and police officers belonging to the △△ Group, 18, and 11 of the police officers assigned to the △△ Group, were arrested as flagrant offenders and nine persons, including Nonindicted 2, 20, 26, and 14, who were judged to have a high possibility of making a statement of gambling suspicion, and on 07:30, when starting the △△ Group, Nonindicted 7, who was the police officers assigned to the △△ Group, arrived at the ○○ Police Station around 07:30. At this point, Nonindicted 14, who was the police officers assigned to the △△ Group, was a majority of gambling, and Nonindicted 7, who was the police officers assigned to the △△ Group, was a person who was paid a fine, and prepared a written statement by stealing Nonindicted 15, who was arrested in the △△△ Group, was released by preparing only identification and a report on arrest of the person who was arrested, and confirmed the remaining identity.

(12) According to the work rules of the ○○ Police Station, where the time of taking the police station into custody is 08:00 or more, the following work group will take over and deal with the case. The arrest letter of the flagrant offender of this case includes 08:07 the time of taking into custody of the police station. The strong 4 team handed over the arrest letter of the instant gambling case to a strong offender without any further investigation, the letter of arrest and confirmation of the flagrant offender, the letter of the 22 persons suspected of gambling, the letter of voluntary movement agreement of the 17 persons prior to denying the suspicion of gambling, the photograph taken by the gambling site and gambling suspect, the cash and 5910,000 won, and the letter of seizure as to 60,000 won and 20 copies of his check, etc. to a strong 5 team without any explanation.

(13) The police officers assigned the instant gambling case to the ○○ Police Station violent Team Team Nos. 5 were arrested as a flagrant offender and investigated only four persons who were transferred to the prosecution, and transferred the instant case to the prosecution. The police officers did not conduct any investigation at all without entering the remaining 18 persons.

B. Determination

(1) Determination as to the abandonment of duty

When a public official prescribed in Article 122 of the Criminal Act abandons his duties without a justifiable reason, such as a critical neglect or renunciation of duties, means a case where a public official fails to perform his duties without a justifiable reason. The crime of abandonment of duties is not established where a public official fails to faithfully perform his duties due to neglect, loss, neglect, neglect, etc., or where he performs his duties formally or in negligence (Supreme Court Decision 96Do2753 delivered on April 11, 1997). Therefore, the crime of abandonment of duties is not established when a public official neglects an abstract duty by Acts and subordinate statutes, internal rules, etc., but it is established only in the case where a public official neglects his duties without a permission or waiver of duties, etc., and specific danger exists that may cause damage to the people, and the degree of illegal and responsible expenses is high (see Supreme Court Decision 9Do2753 delivered on July 12, 2007). Thus, the crime of abandonment of duties is not established on the sole basis of the fact that the contents of his duties are illegal in any form (see Supreme Court Decision 2006Do306, Jul. 129, 206.

Therefore, in light of the above legal principles, if Defendant 1 and Defendant 3 and police officers belonging to △△ District did not know about the above facts, they collected evidence on the spot of gambling and gambling, and seized 61 suspects who were on the spot of gambling, and the police officers did not know about the fact that they did not know about the suspect's identity during the 4th police officer's arrest and investigation, and did not know about the suspect's identity during the 4th police officer's arrest and investigation, it was recommended that the Defendants and Nonindicted 6, the police officers who were on the 4th police officer's arrest and investigation of the suspect of gambling, who were on the 4th police officer's arrest and investigation of the suspect of gambling, were arrested, and the remaining police officers did not know about the 18th police officer's identity during the 4th police officer's arrest and investigation of the suspect of gambling, and the remaining police officers did not know about the 18th police officer's arrest and seizure of the suspect.

Furthermore, as indicated in the facts charged, whether the police officers belonging to the △△ Group and the △△ Team were willing to reduce or conceal gambling cases upon Nonindicted 5’s request, as indicated in the facts charged, and as evidence corresponding thereto, the Defendants and the △△ Group and the △△ Team testified that only four persons were arrested as a flagrant offender and the rest of the police officers was released.” “I told that Nonindicted 5 would be resolved at the request of Nonindicted 5’s △△ Group,” “I told that the police officers were able to fill their total lives, and the police officers were determined against the gambling suspects,” and “I would like to understand that there was no evidence that Nonindicted 20, 12, 30, 25, 31, 31, and 4 were suspected to have been suspected to have been suspected to have been suspected to have been suspected to have been, and that there was no other evidence that Nonindicted 5 and the △△△ Team were suspected to have paid to the Defendants 2 and the 2nd △△ Team.”

Therefore, the judgment of the court below that found this part of the facts charged guilty is erroneous in the misunderstanding of facts, and the defendants' grounds of appeal pointing this out are with merit.

(2) Determination as to the arrest of flagrant offenders and the preparation and exercise of a false certificate

According to the records, from among the police officers belonging to the Defendants, △△ Group, and △△ Team, any of the four police officers who were arrested in the act of committing an act of committing an offense does not appear to have been notified of the grounds for arrest and the right to appoint a defense counsel. The above four police officers did not appear to have been notified of the grounds for arrest and the right to appoint a defense counsel. As such, the police officers belonging to the Defendants, △△ Group, and △ Team were arrested the above four police officers as flagrant offenders or preparing a letter of arrest of a flagrant offender, they did not notify the grounds for arrest and the right to appoint a defense counsel.

However, in light of the fact that, as a police officer who arrests a flagrant offender, there is no reason to not notify the reason for arrest and the right to appoint a counsel, if the police officer did not notify it, it would be an urgent situation at the time of arrest or due to negligence. In light of the above circumstances, it is difficult to conclude that Nonindicted 9 and 10, a police officer belonging to △△ Group, who prepared a letter of arrest of a flagrant offender and a written confirmation, did not notify all the police officers belonging to △△ Group, who participated in the arrest at the time of the arrest, of the reason for the arrest and the right to appoint a counsel. However, it is difficult to conclude that he prepared a false public document with the intent to prepare a false public document (i.e., the possibility that the police officer prepared the document without any specific awareness under the potential awareness that the military would have been naturally notified). Even if not, there is no evidence to acknowledge that Defendant 1 and 3 conspired to prepare a false letter of arrest of a flagrant offender and a

Therefore, the judgment of the court below that found this part of the facts charged guilty is erroneous in the misunderstanding of facts, and the defendant 1 and 3's ground of appeal pointing this out is with merit.

(3) Determination on the establishment of a false written consent and the conduct of events

According to the records, each of the voluntary behavior of this case is acknowledged as having been prepared in their names on the following purport: "The defendant 1 and 3, who is the suspect of gambling, was notified of the right to freely leave from the police officer's non-indicted 10 as well as the right to refuse to do so, and confirmed that he consented to the voluntary behavior." According to the above facts, each of the voluntary behavior of this case is a private document prepared by the non-indicted 16, etc. and cannot be deemed as a public document prepared by the public official. Thus, the court below found the defendant guilty of this part of the facts charged on the premise that the written consent for voluntary behavior of this case is an official document, and there is an error of law in the misunderstanding of facts, and the grounds for appeal pointing this out are with merit.

4. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act without examining the remaining grounds for appeal on the grounds of appeal, since the defendants' assertion of grounds for appeal on mistake of facts is well-grounded, and the following decision is

The summary of the facts charged against the Defendants is identical to that of the above 2. A., and this is no proof as seen in the above 3., and thus, the Defendants are acquitted under the latter part of Article 325 of the Criminal Procedure Act.

Judges Choi Sung-sung (Presiding Judge)