Defendant 1 and three others

Both parties

Dog-Appellee et al.

Attorney Choi Sung-ju et al.

Busan District Court Decision 2011Gohap93 Decided May 27, 2011

Defendant 1 of the lower judgment is reversed.

Defendant 1 shall be punished by imprisonment for life.

Evidence 1), X-bend (Evidence 2 of the same seizure list), one rearct (Evidence 3 of the same seizure list), one rearctal (Evidence 4 of the same seizure list), one per unit (Evidence 4 of the same seizure list), one per unit (Evidence 5 of the same seizure list), one siren 6 (Evidence 6 of the same seizure list), one 1 string (Evidence 7 of the same seizure list) (Evidence 7 of the same seizure list), one 1 5 strings (Evidence 7 of the same seizure list), one 1 3 2 strings (Evidence 7 of the same seizure list), one 1 2 2 strings (Evidence 8 of the same seizure list), one 2 2 2 strings (Evidence 9 of the same seizure list), one 10 2 strings of the new seizure list (Evidence 13 of the same seizure list), one 10 strings of the previous seizure list (Evidence 14 of the same seizure list).

All appeals filed by the prosecutor and the defendant 2, 3, and 4 are dismissed.

The judgment of the court below is corrected to add the attached part of the relevant legal provision on criminal facts in the column of application of the law to the remaining defendants except Defendant 1.

1. Summary of grounds for appeal by the public prosecutor;

A. misunderstanding of facts or misunderstanding of legal principles (defendant 2, 3, and 4)

(1) misunderstanding of facts or misapprehension of legal principles

Comprehensively taking account of the evidence revealed in the records of this case, it can be acknowledged that the above defendants had a prior recruitment that they may kill seafarers at any time when they do not want to do so, such as a case where an external force attempted to kill seafarers in the course of piracy with other piracys. In such conspiracys, the concealment of some piracy including the above defendants does not constitute a deviation from the conspiracy relationship in light of the attitude of the Supreme Court precedents as to escape from the conspiracy relationship. However, the court below acquitted the defendants of this part of the charges, which is erroneous in the misapprehension of facts or by misapprehending legal principles, which affected the conclusion of the judgment.

B. Unreasonable sentencing (as to the defendant)

In light of the various sentencing conditions in the instant case, the lower court’s punishment against the Defendants is too unfasible and unfair.

2. Summary of the grounds for appeal by the Defendants

A. Defendant 1

(1) misunderstanding of facts or misapprehension of legal principles

In the judgment of the court below, even if the piracy 3-g (the "wing wing wing wing wing wing winging on the crew's wing wing wing wing wing wing wing wing wing wing wing, it does not seem to have dolusent intention of murdering the naval wing wing wing wing wing, and even if it is acknowledged that the crew did not sacrifice the naval wing wing wing wing wing wing 2, it constitutes a attempted murder, since the wing wing wing wing wing wing wing wing wing wing wing wing wing and the crew did not have any wing wing 2, and even if it is recognized that the crew did not sacrifice the total attack of the naval wing wing wing wing wing wing wing wing wing wing wing wing, the crew's wing wing wing wing wing wing wing wing wing wing wing wing wing.

(2) Unreasonable sentencing

In light of the various sentencing conditions in the instant case, the lower court’s punishment is too unreasonable.

B. Defendant 2

(1) misunderstanding of facts or misapprehension of legal principles

With regard to the 3-E criminal facts in the judgment of the court of first instance (the total attack against soldiers), the defendant did not commit the murder against soldiers, but did not have the intention of murdering, and it could not be said that there was a combination of implied doctors with regard to the murdering of soldiers from the beginning. Therefore, the defendant did not conspired to kill soldiers.

(2) Unreasonable sentencing

In light of the various sentencing conditions in the instant case, the lower court’s punishment is too unreasonable.

C. Defendant 3

(1) misunderstanding of facts or misapprehension of legal principles

With regard to the facts constituting the crime of paragraph 3-e, g., the defendant only played a role of monitoring communications equipment inside the steering house at the time of the first operation of the Navy, but did not possess a gun, and there was no other piracy involved in the act of causing a shooting to the military. At the time of the second operation of the Navy, the defendant did not engage in any act of sharing duties, such as helping other piracy not take the crew into the wing hub, and helping other piracy to make it easy for them to perform such act. The defendant escaped from a public contest relationship because he was fright down to the steering house, and the defendant was fright down to the steering house, and the other piracy did not have any functional control over the other piracy, and therefore, the defendant cannot be held liable for the facts constituting the crime of paragraph g., Article 3-e., the defendant at the time of the original trial.

(2) Unreasonable sentencing

In light of the various sentencing conditions in the instant case, the lower court’s punishment is too unreasonable.

D. Defendant 4

(1) Violation of land jurisdiction

Busan, which is the present location of the defendant, is illegal enforcement against due process under the Constitution, and there is no jurisdiction over Busan District Court.

(2) misunderstanding of facts or misapprehension of legal principles

In the judgment of the court below, even if part of the naval materials of the 3rd wing sub-paragraph (g) of the judgment of the court below, the crew did not have been exposed to the dangerous situation because the crew did not get out of the wing wing sub-sing, and thus, there was no commencement of the commission of murder. Thus, even if the naval materials of this case solicited the crew to put up the wing sub-sing on the wing sub-sing sub-sing sub-sing with regard to the attack of the naval power in advance, it was determined that the crew could prevent the attack of the wing sub-sing sub-sing sub-sing sub-sing prior to the attack of the naval power, and did not intend to do so, but did not intend

(3) Unreasonable sentencing

In light of the various sentencing conditions in the instant case, the lower court’s punishment is too unreasonable.

3. Determination

A. As to the assertion of violation of land jurisdiction

As the court below properly and in detail explained, since this case is a foreigner's crime against a citizen outside the territory of the Republic of Korea, our criminal law is applied pursuant to Article 6 of the Criminal Act, and the defendants are currently detained in Busan detention center through lawful procedures such as arrest, detention, delivery, etc. of the defendants, and the defendants are currently detained in Busan detention center. Thus, the above argument is without merit since the Busan District Court has territorial jurisdiction over this case in accordance with Article 4 (

B. Judgment on misconception of facts and misapprehension of legal principles

(1) As to the prosecutor’s assertion (as to Defendant 2, 3, and 4)

In light of the records, a thorough examination of the evidence of this case reveals that, when a situation occurs that obstructs the achievement of the original purpose, such as kidnapping of a ship, force on navigation in Somaria and demand for release, etc., the conspiracys including the above Defendants, including the above Defendants, attempted to achieve their original purpose even by examining hostages, etc., and cannot be deemed as conspiracys to kill the person who provided the cause in the situation where the original objective is achieved and the existence of their survival is unknown, it cannot be seen that some of the piracys intended to kill the captain in response to retaliation in the situation where it was difficult for the crew to take advantage of the piracy, etc., but the total attack continued after the piracy continued, it cannot be seen that there was a legitimate attempt to kill the captain of this case, such as the above Defendants 2, who attempted to kill the captain of this case, by throwing the arms out of the steering house, and she was aware of the body inside the steering house, or immediately after getting out the body of the pilot. Thus, the judgment of the court below is justified and acceptable.

Therefore, as the prosecutor pointed out in the judgment of the court below, there is no error of law that affected the conclusion of the judgment by misunderstanding the facts or misunderstanding the legal principles, so the prosecutor's above assertion

(2) As to the Defendants’ assertion

(A) Whether Defendant 2 and 3 are jointly liable for the total attack of soldiers (the crime of Section 3-5(e) at the time of the original trial)

According to the court below's duly reviewed and adopted evidence, the piracy of this case, which is acknowledged by the above evidence, has been forced by threatening a ship sailing the Indian sea area from the sea area only through Anden, using firearms, etc., and conspired to demand the release of the ship and its crew members. In order to attract the ship of this case to Somaria, the act of preventing the act of restoring the ship of this case is also included in the public offering. Thus, it is reasonable that the piracy of this case committed a total attack of the naval fleet of the Navy at the time of the first operation of the Navy constitutes an act consistent with the above public offering, and Defendant 2 should be held as an agent, and Defendant 3 should be held liable for murder of the above part of the crime, regardless of whether the above piracy had an impact on the ship of this case, and thus, Defendant 2 should be held as a joint principal offender of this case as part of the crime.

Therefore, the judgment of the court below does not seem to have erred by misunderstanding the facts as pointed out by the defendant 2 and 3, which affected the conclusion of the judgment, so the above argument by the defendant is without merit.

(B) Whether Defendant 1, 3, and 4 assume the responsibility of co-principal for committing the crime (the crime of paragraph (g) of Article 3 at the time of the judgment of the court below) which caused the crew members to “human satisf.”

The court below, based on the evidence duly examined and adopted, stated the following circumstances, i.e., Defendant 3, at the time of the first operation of the Navy, carried the crew members of the wing engine including himself, and stated that the captain left the steering house. The captain later stated that the piracy 2 of this case was the captain, and that the captain took the captain. (Evidence 29, 3876 pages) The piracy 2 of this case was not the first operation of the Navy, but the crew of the wing engine, and that the crew of the wing was not the captain at the time of the first operation (Evidence 2 of this case, 2959 pages, 386 pages), and that the Defendants were not the captain at the time of the first operation of the Navy, but the captain could not have attempted to take a wing engine, and that the Defendants were not the captain of the wing engine at the time of the second operation of the wing fleet, and that the Defendants could have been the captain of the wing engine at the time of the first operation.

Therefore, the above defendants shall be liable to the seafarers as co-principal for the facts constituting the crime of Item g (g) of Item 3 of the judgment in which the crew members are human failure, and the court below's judgment that found the above defendants guilty of this part of the facts charged is just, and the judgment below did not find any error of law that affected the conclusion of the judgment by misunderstanding the facts as pointed out by the above defendants, and therefore the above defendants

(C) Whether Defendant 1 committed a total attack against Nonindicted 2

In light of the circumstances acknowledged by Nonindicted Party 2’s reasoning that Nonindicted Party 2 was aware of Nonindicted Party 2’s front wing steering house, and that Nonindicted Party 2 was not aware of Nonindicted Party 2’s front wing steering house at the time of the instant investigation and adoption, it was difficult to view that Nonindicted Party 2 was aware of Nonindicted Party 2’s front wing steering house, and that Nonindicted Party 2 was aware of Nonindicted Party 2’s front wing steering house, and that Nonindicted Party 2 was aware of the fact that Nonindicted Party 3’s front wing steering house, and that Nonindicted Party 2 was not aware of Nonindicted Party 2’s front wing steering house at the time of the instant investigation and adoption. In light of the fact that Nonindicted Party 2 was aware of the fact that Nonindicted Party 3’s front wing steering house, it was difficult to view Nonindicted Party 2’s front wing gun’s front wing gun’s front wing gun, and that Nonindicted Party 2 was aware of the total wing gun’s front wing gun.

Therefore, the above defendant's above defendant's above assertion is without merit, since it seems that there is no error of law that affected the conclusion of the judgment by misunderstanding facts as pointed out by the court below.

C. Determination on the assertion of unfair sentencing on Defendant 2, 3, and 4

The above defendants, in collusion with other piracys of this case, did not cause any mental or physical pain to affected seafarers, soldiers, etc. as well as their family members through the prevention of the crime by carrying a large quantity of firearms and heavy firearms, etc., and did not cause serious mental or physical pain, and the shipping company belonging to the affected vessel has been in the crisis of bankruptcy due to management difficulties, leading to collective and organizational attack against the armed forces of the Republic of Korea lawfully dispatched to participate in international efforts for maritime safety and to support the safe operation of our vessel. The piracy of this case shows that most of all of the piracys of this case was flived by using a large quantity of piracys as security, and that the motive of the act of piracy of this case was extremely vague and searched, and that eight persons including two Bas per day, etc. among the two piracys of this case did not play a significant role in the sentencing of the captain of this case, and that the above defendants did not play a role in monitoring the captain of this case and did not play a significant role in the sentencing of the above defendants.

Therefore, the prosecutor and the above Defendants’ assertion of unreasonable sentencing cannot be accepted.

D. Ex officio determination on Defendant 1

The lower court sentenced the Defendant to life imprisonment in the text, and, in the application of the statutes, determined a punishment for life for the crime of attempted murder in the course of marine robbery and for the crime of attempted murder in the course of marine robbery with the other Defendants, and aggravated the punishment for attempted murder in the course of marine robbery with the other Defendants. However, according to Article 5(1)2 of the Criminal Act, in a case where life imprisonment is mitigated, imprisonment for not less than 10 years but not more than 50 years shall be mitigated, and according to Article 38(1)2 of the Criminal Act, imprisonment for a limited term may be mitigated, even if one of the concurrent crimes is aggravated, imprisonment for a limited term may be aggravated, and imprisonment for a limited term may not be imposed. Accordingly, there is no problem in the application of the statutes to the other Defendants who sentenced to limited term, but the above statutes of the lower

4. Conclusion

Therefore, all appeals filed by the prosecutor and the defendant 2, 3, and 4 are dismissed for lack of reason, and the judgment of the court below shall be reversed ex officio pursuant to Article 364(2) of the Criminal Procedure Act, and the defendant 1 shall be judged as follows, after pleading. The judgment of the court below shall be made as follows. Since the judgment of the court below omitted the judgment of the court below as to the injury caused by special obstruction of performance of official duties in the judgment of the court below as to the crime in the column of application of the statutes against the remaining defendants except the defendant 1, in accordance with Article 3-e of the Criminal Procedure Act

The summary of the facts constituting the crime recognized by this court and the summary of the evidence are the same as the corresponding columns of the judgment of the court below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Articles 342, 340(3) and (1), 30 (the attempted murder at the time of original adjudication) of the Criminal Act; Articles 342, 338 (the former part of Articles 32, 336, and 30 (the attempted murder at the time of original adjudication) of the Criminal Act; Articles 340(2) and (1), 30 (the attempted murder at the time of original adjudication; 36, 30(f) of the Criminal Act; 36, and 30 (the injury by marine robbery at the time of original adjudication); 34(1) and (h) of the Criminal Act; 144(2) and the first part of Article 136(1); 136(1); 30 (the injury by marine robbery at the time of the original adjudication; 36(1) of the Criminal Act; 14(1) and 136(1); 30(1) of the former part of the Criminal Act; 136(1) and 6(3) of the Punishment of the Crime of the Ships Act.

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (the crime of attempted murder at the time of original adjudication, the crime of attempted murder at sea robbery at sea as defined in Article 3-e of the Criminal Act, the crime of attempted murder at sea as defined in each of the crimes, the crime of attempted murder at sea as defined in each of the crimes of attempted murder at sea as defined in each of the crimes of attempted murder at sea as defined in each of the crimes of attempted murder at sea, the crime of bodily injury by sea as defined in Article 3 of the Criminal Act, the crime of attempted murder at sea as defined in Article 40 of the Criminal Act, the crime of attempted murder at sea as defined in each of the crimes of attempted murder at sea as defined in each of the crimes of attempted murder at sea: The punishment for attempted murder at sea as defined in Article 3 of the Criminal Act, the crime of attempted murder at sea as defined in each of the crimes of attempted murder at sea as one of the most severe crimes of the crimes against Nonindicted 4 of the victim, the punishment for attempted murder at sea, the punishment for attempted murder at sea as a crime of robbery at sea, and the punishment for attempted murder at sea as defined in the Act.

1. Selection of punishment;

Punishment for life imprisonment and injury by marine robbery shall be chosen for each crime of attempted murder by marine robbery.

1. Punishment of concurrent crimes;

Article 37(former part of Article 37, Article 38(1)1, and Article 50 (Punishment for Life in Case of Death for which Punishment on Attempted Murder at Sea is more severe, as punishment is selected for a severe life imprisonment)

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

1. Reasons for not taking a mitigation;

In general, in general, if the defendant uses it to Nonindicted 2, he/she shall not be mitigated due to the fact that he/she has suffered a full death and a fatal injury to the extent of his/her death.

In light of the general grounds for sentencing as indicated earlier in the judgment on the allegation of unfair sentencing against the remaining Defendants, the Defendant’s participation in the selection team for kidnapping ○○○○○○○○○○○○, the Defendant’s leading crew at the time of the secondary rescue operation of the Navy, leading crew members in the process of the naval fleeting the wing wing engine to human-bunching, leading the captain to a total attack at the time of the secondary rescue operations of the Navy, and resulting in the death immediately before the death, rather than the other Defendants sentenced to imprisonment for a limited term.

Furthermore, as seen earlier, eight dynamics, including the two titles, can be seen as having already killed and treated considerable consideration, and considering that the captain’s active support and the part of the medical professionals with unconstitutional and real history has been considerably restored to the captain’s attempt to commit the marine robbery of this case, it is reasonable to impose death penalty as alleged by the prosecutor, not the case where the death penalty is imposed, but the opinion of the jury group of the lower court and the life imprisonment as decided by the lower court.

Judges Choi Jae-ho (Presiding Judge)