[1] The person who bears the burden of proof as to the existence of intention (=the prosecutor) and the degree of probative value of evidence for the recognition of guilt / In a case where the result of the crime is very significant and significant, and there are circumstances likely to be criticized in the circumstances of the crime, the method of

[2] In order to determine whether the relationship between mutual use based on the intent of joint processing constitutes a joint principal offender and the content of “joint processing intention,” which is a subjective element of joint principal offender / Whether the relationship between mutual use based on the intent of joint processing should be proven beyond reasonable doubt (affirmative)

[1] The burden of proving the existence of an intentional act, which is a subjective element of the crime charged, is also imposed on the military prosecutor. The conviction should be based on evidence with probative value sufficient for a judge to have the truth of the facts charged to the extent that there is no reasonable doubt. Thus, if there is no such evidence, even if there is doubt of guilt against the Defendants, the interpretation and application of penal provisions should be strict. Furthermore, even if the result of the crime is very significant, motive, method, and circumstance of the crime is highly likely to be criticized, determining the punishment heavier by considering it as an unfavorable element of the sentencing should not be easily acknowledged on the ground of such circumstance, and should be careful caution when acknowledged.

[2] A co-principal under Article 30 of the Criminal Code is a co-principal who commits a crime jointly with two or more persons. In order to constitute a co-principal, the intent and objective requirements of co-principal are required to commit a crime through functional control based on the co-principal’s intent and objective requirements. The intent of co-processing is insufficient to recognize and refuse to commit another person’s crime, and to accept it without restraint. The intent of co-processing is one of the two with intent to commit a specific criminal act, and to shift one’s own intent by using another’s act. Therefore, in order to determine whether a co-principal is a co-principal, the relationship of mutual use based on the intent of co-processing should be proven to the extent that there is no reasonable doubt by comprehensively examining the status and role of each actor through the whole process of realizing the crime.

[1] Articles 13 and 250 of the Criminal Act; Articles 307 and 308 of the Criminal Procedure Act / [2] Article 30 of the Criminal Act; Article 308 of the Criminal Procedure Act

[1] Supreme Court Decision 2004Do74 Decided May 14, 2004 (Gong2004Ha, 1101) / [2] Supreme Court Decision 98Do1832 Decided September 22, 1998 (Gong1998Ha, 2633) Supreme Court Decision 2001Do4792 Decided November 9, 2001 (Gong2002Sang, 119) Supreme Court Decision 2008Do1274 Decided April 10, 2008 (Gong2008Sang, 708)

Defendant 1 and four others

Military Prosecutor and Defendants

Law Firm Shin Young-young et al.

High Court for Armed Forces Decision 2014No315 Decided April 9, 2015

Of the judgment below, the part against Defendant 1 and the part against Defendant 2, Defendant 3, Defendant 4, and Defendant 5 are reversed, and this part of the case is remanded to the High Court for Armed Forces.

1. As to Defendant 1’s ground of appeal

A. As to murdering

(1) Murder does not necessarily require the purpose of murder or the planned intention of murder, and it may be deemed that there was an intentional act if the Defendant knew or predicted that there was a possibility or risk of causing the death of another person due to his own act, such as his own assault. In a case where the Defendant asserted that there was no intentional murder at the time of the commission of the crime, only the Defendant was guilty of the intentional murder or assault, the determination should be made by taking full account of the circumstances leading up to the commission of the crime, the motive of the crime, the motive for the commission of the crime, the existence and type of the prepared deadly weapon, the degree of the occurrence of the consequence of the murder, the possibility of the occurrence of the consequence of the crime, and the objective circumstances before and after the commission of the crime (see, e.g., Supreme Court Decision 200Do2231, Aug. 18, 200).

(2) On March 16, 2014, immediately after the victim transferred to the medical team, Defendant 1 continuously assaulted the victim on April 6, 2014, and, in particular, around 00:0 on April 6, 2014, the victim tried to have been aware of the victim's intention or walked about 25 percent of his/her chest because of the victim's lack of awareness that he/she was the father of the victim's accident, and, on the other hand, he/she could not have been aware of the victim's intention or remaining after he/she had been exposed to the victim's injury. The lower court determined that Defendant 1 was guilty of the victim's injury or injury on the part of the victim, including Defendant 1, who did not have been aware of the victim's injury or injury on the part of the victim's body, or who did not have been aware of the victim's injury or injury on the part of the victim's body of the victim's body of the victim's body of the victim.

(3) Examining the reasoning of the lower judgment in light of the aforementioned legal principles and the evidence duly admitted by the lower court, the lower court’s aforementioned determination is just and acceptable. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules or by misapprehending

B. On the part of a soldier's indecent act by force

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, it is justifiable to have determined that the lower court convicted Defendant 1 of the charge of indecent act by force on the part of the military personnel, etc. on the grounds indicated in its reasoning, and contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free

2. As to the grounds of appeal by Defendants 2, 3, and 4

A. Of the facts charged against the above Defendants, the summary of murder is as follows.

피고인 2, 피고인 3, 피고인 4는 피고인 1과 함께 2014. 3. 8.부터 피해자에게 폭행을 가하고 가혹행위를 하였고, 피해자가 수면을 취하지 못하거나 식사를 하지 못하였고 그동안의 폭행으로 복부와 가슴，허벅지 등 신체 전반에 피하출혈이 있으며 호흡을 잘 하지 못하고 다리를 저는 등 건강 상태가 좋지 않다는 것을 알고 있었음에도, 2014. 4. 6. 16:07경 의무반 생활관에서 피해자와 함께 냉동식품을 먹던 중 피해자가 음식을 쩝쩝거리고 먹으며 질문에 대답이 늦는다는 등의 이유로 원심 판결서 별지 범죄일람표 1항 기재와 같이 피해자를 폭행하였다. 그러던 중 16:32경 피해자가 눈을 감고 쓰러지며 살려달라고 하는 등 계속되는 폭행에 의하여 피해자가 사망할 것을 예견하면서도 위 범죄일람표 1항 기재와 같이 피고인 2, 피고인 4는 망을 보고, 피고인 3은 피해자가 물을 마시지 못한다는 이유로 손바닥으로 피해자의 머리를 3회 때리고, 그 후 피고인 1은 피해자가 오줌을 싸며 정신을 잃었음에도 꾀병 부리지 말라고 하며 발로 피해자의 가슴 부위를 1회 걷어찼다. 이로 인해 피해자로 하여금 2014. 4. 7. 16:20경 가톨릭대학교 의정부성모병원에서 과다출혈에 의한 속발성 쇼크 및 좌멸증후군 등으로 사망하게 하여, 위 피고인들은 피고인 1과 공모하여 피해자를 살해하였다.

B. In full view of the following facts: (a) Defendant 2, Defendant 3, and Defendant 4 continuously participated in Defendant 1’s assault since early March 2014 by means of assaulting the victim or viewing the victim’s identity at the time of assaulting the victim; (b) Defendant 1 was well aware of the degree of injury suffered by the victim and the degree of the victim’s health; and (c) the said Defendants were aware of the degree of serious health condition of the victim; (d) on April 6, 2014, during drinking freezing food on the day of the instant case, Defendant 1 took part in the assault and cruel act; and (e) Defendant 1 took part in the murder, she was aware of or predicted the possibility or risk of the victim’s death; and (e) the Defendants did not jointly commit the crime of murder on the grounds that it could be deemed that the occurrence of the result was acceptable. Furthermore, the lower court determined that the Defendants did not jointly commit the crime of murder on the sole basis that the Defendants led Defendant 1 to commit the crime of murder.

C. However, it is difficult to accept the judgment of the court below for the following reasons.

(1) As seen earlier, Defendant 2, Defendant 3, and Defendant 4 asserted that the Defendants had no intent to murder at the time of the commission of the crime, as seen earlier, should be determined by comprehensively taking account of the objective circumstances before and after the commission of the crime, such as the background leading up to the commission of the crime, motive for the commission of the crime, the existence, type, and method of use of a deadly weapon prepared for the commission of the crime, the likelihood of the occurrence of the consequence of the crime, the possibility of the occurrence of the consequence of the crime, and the existence of the consequence of the crime. However, the prosecutor bears the burden of proving the existence of an intentional act, which is a subjective element of the crime charged, and the recognition of guilt ought to be based on evidence with probative value sufficient to ensure that the judge is true enough to have a reasonable doubt. Thus, if there is no such evidence, even if there is suspicion of guilt against the Defendants, it should be determined as the interests of the Defendants (see Supreme Court Decision 2004Do74, May 14, 2004).

Meanwhile, a joint principal offender under Article 30 of the Criminal Act commits a crime jointly with two or more persons. In order to establish a joint principal offender, a joint principal offender is required as a subjective element and objective element to commit a crime through functional control based on a joint principal’s intent. A joint principal offender’s intent is not sufficient to recognize and refrain from committing another person’s crime. A joint principal offender’s intent to commit a specific criminal act is one of the joint principal offenders with another’s intent and to shift his/her intent to one’s own intent by using another’s act (see, e.g., Supreme Court Decisions 2001Do4792, Nov. 9, 2001; 98Do1832, Sept. 22, 1998). Accordingly, in order to determine that a joint principal offender is established, the relationship between each actor’s status and role through the whole process of criminal realization should be examined in detail, and the contents of recommendations against other actors should be sufficiently doubtful to the extent that there is any reasonable doubt as to their mutual intent of use.

(2) According to the reasoning of the lower judgment and the evidence duly admitted by the first instance court, the following facts are revealed.

① Defendant 1, along with Defendant 2, Defendant 3, Defendant 4, and Co-Defendant 6 of the lower court’s judgment, had been living in the medical room. The highest entrance date was 4-5 years old or more, and served as an appointed soldier in the medical team. Defendant 1 led the victim to an assault against the victim on the ground that the victim was unaware of his behavior since the first police officer on March 2014 when the victim moved into the medical team and took an answer. Defendant 2, Defendant 3, and Defendant 4 participated in the assault on the part of Defendant 1’s instructions or recommendations.

② Around 00:00 on April 6, 2014, Defendant 1 heard from the victim the horses that “Defendant 1’s father was the largest of his father,” and the Defendant 1 caused the victim’s chests twice by drinking and salivating so that he could have the victim’s chests cut over two times. From that time, the degree of assault and cruel act was rapidly strong.

From around 00:00 to 16:00 on April 6, 2014, Defendant 1 instructed other Defendants, including Defendant 2, Defendant 3, and Defendant 4 to take advantage of the victim, etc., or to look at the network, and assaulting the parts of the clothes, etc., such as the victim, etc., and directed other Defendants, including Defendant 2, etc. to stop the victim.

③ On April 6, 2014, Defendant 2 and Defendant 3 discovered that there was a hole on the chest of the victim, and asked Defendant 1 about whether Defendant 1 had to get medical treatment because of the victim’s large number of victims. However, Defendant 1 considered that Defendant 1 was punished upon the lapse of a large number of days.

④ 피고인 1은 2014. 4. 6. 16:07경부터 피해자가 응급실에 후송된 같은 날 16:32경까지 냉동식품을 먹는 동안에도 전날 피해자가 피고인 1의 아버지가 조폭이었다는 이야기를 꺼냈다는 이유를 비롯하여 피해자가 대답을 늦게 하거나 반말을 했다는 등의 갖은 이유로 주먹, 손바닥, 발, 무릎 등으로 피해자의 얼굴, 옆구리, 복부 부위를 약 30회 이상 때렸다. 같은 시간 피고인 2는 손바닥으로 피해자의 머리를 때리고 피고인 1이 폭행할 때 피해자의 양팔을 잡거나 출입문에서 망을 보았고, 피고인 3은 손바닥이나 주먹으로 피해자의 정수리, 뺨, 가슴 부위를 때리거나 피고인 1과 함께 발로 피해자의 배 부위를 10회가량 걷어찼으며, 피고인 4는 피고인 1의 지시로 피해자에게 엎드려 뻗쳐를 시킨 후 발로 복부 부위를 걷어차거나 출입문에서 망을 보았다.

⑤ 피고인 2, 피고인 4는 거듭된 폭행으로 쓰러져 있는 피해자를 부축하고 오줌에 젖은 속옷을 갈아입히고 물을 먹이려 하였는데, 피고인 1은 발로 피해자가 뒤로 밀려나갈 정도로 복부 부위를 강하게 걷어찼고 이어 폭행을 계속하고자 하였으나 피고인 3이 만류하여 더 이상의 폭행은 가하지 못하였다. 그 무렵 피해자가 정신을 잃자 피고인 4는 산소포화도 측정기로 산소와 맥박의 수치를 측정하고, 이어 피고인 2, 피고인 3은 심폐소생술을 시도하기도 하였다. 그럼에도 상황이 호전되지 아니하자 의무반 구급차를 이용하여 피해자를 연천의료원으로 후송하였는데, 피고인 1이 위 구급차를 운전하고 피고인 2, 피고인 3이 위 구급차에 동승하여 번갈아가며 심폐소생술을 실시하면서 피해자에게 ‘일어나라’고 소리치는 한편, 피고인 2는 후송 내내 울먹거렸다.

(3) According to these facts and records, the following circumstances may be inferred.

① As Defendant 2, Defendant 3, and Defendant 4 play a role in an assistant soldier, Defendant 1’s eye leading in an atmosphere within the medical team is bound to be seen, and Defendant 1’s active and passive instruction or solicitation appears to have participated in the assault. The degree and frequency of the assault was much less than Defendant 1 compared to that of Defendant 1.

② At around 00:00 on April 6, 2014, Defendant 1 heard the fact that his father was bombed by the victim’s father around 00:0, that she was the most deep sense, and she was frightly frighted for the victim. Such fright was also the motive of serious assault against the victim during the same day. On the other hand, Defendant 2, Defendant 3, and Defendant 4 did not find any particular circumstance that could serve as a motive for forming an intent to accept the result of the victim’s death, as well as the date of the instant case on April 6, 2014.

③ Examining the contents of the assault after April 6, 2014, around 16:07, Defendant 1 assessed against the victim’s body parts, such as the victim’s side glass, knee, and knee. While Defendant 2, Defendant 3, and Defendant 4 used the network during which the assault was committed, or her head, mar, etc. with the floor of hand, etc., or walking with the part that was cut back with Defendant 1’s direction, the frequency of the assault is considerably low compared to Defendant 1. In so doing, unlike Defendant 1, it is difficult to evaluate Defendant 2, Defendant 3, and Defendant 4’s means or method of assault, or their behavior itself as an act likely to cause the result of death, or as an act that may normally cause such danger.

④ The victim was unable to commit an ongoing assault and was used on the part of the victim, and his consciousness was unclear. In such a case, if a person who did not know and intend to know the result of the death, it would normally confirm the state of the victim’s health or resign an additional assault. Defendant 1 attempted to continue the victim’s assaulting with his/her clothes and walking back on the part of the victim more strongly once on the ground that he/she was suffering from an attempted illness, but Defendant 2, Defendant 3, and Defendant 4 discontinued the assault more than the victim’s breath, and frighted him/her to drinking water or drinking water on the part of the victim, and subsequently actively prevented Defendant 1’s assault.

⑤ Defendant 2, Defendant 3, and Defendant 4 immediately attempted to measure or cardiopulmonary resuscitation immediately after the victim was written. In particular, Defendant 2 took place during the process of transmitting the victim to medical center, and she did so. In short, it is difficult to see that such series of actions committed by the victim to commit murder was a result of death or an act of committing murder, which perceived the occurrence of death.

(4) Examining the above facts and circumstances in light of the legal principles as seen earlier, even though Defendants 2, 3, and 4 partly participated in the act of assault and cruel acts deviating from Defendant 1’s common sense, it is difficult to deem that Defendant 2, 3, and 4 did not go to a harmful act by disregarding the possibility or expectation of the victim’s death or the risk despite the victim’s death. In addition, in light of the degree of participation in each of the crimes, it is difficult to view that Defendant 2, 3, and 4 were integrated with Defendant 1 and intended to move to the commission of murder by taking advantage of the aforementioned act.

Nevertheless, on the premise that the willful negligence of murder is recognized with respect to Defendant 2, Defendant 3, and Defendant 4, the lower court deemed Defendant 1 as co-principal and found Defendant 1 guilty of the facts charged in this case. In so doing, the lower court erred by misapprehending the legal doctrine regarding the intentional murder and co-principal, or failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules. The allegation in the grounds of appeal assigning this error is with merit.

3. As to Defendant 5’s ground of appeal

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, the lower court is justifiable to have found Defendant 5 guilty of each of the facts charged in the instant case on the grounds stated in its reasoning. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules,

4. Regarding the grounds of appeal by the military prosecutor

Examining the reasoning of the lower judgment in light of the record, the lower court is acceptable to have rendered a not guilty verdict on Defendant 5 on the charge of the secondary crime committed against Defendant 5 on the ground that there was no proof of crime. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine

5. Ex officio determination

Article 1(1) of the Criminal Act shall apply to cases where punishment is significantly changed or where there is no change in punishment even after the change in law after the crime was committed. Of the facts charged in the instant case, the lower court convicted Defendant 1 and Defendant 3 of the crime by applying Articles 3(1) and 2(1)1 of the Punishment of Violences, etc. Act, Article 260(1)1 of the Criminal Act, Article 260(1)1 of the Criminal Act, and Article 260(1)1 of the same Act, and Article 3(1)1 of the former Punishment of Violences, etc. Act (amended by Act No. 12896, Apr. 6, 2014; Articles 3(1) and 28(1)1 of the Punishment of Violences, etc. Act (amended by Act No. 12896, Dec. 30, 2014; Articles 3(2)1 and 28(1)6(1)1 of the former Punishment of Violences, etc. Act, which were amended by Act No. 106(2).

However, after the judgment of the court below was rendered, the Constitutional Court rendered a decision of unconstitutionality as to "a person who committed a crime under Articles 260(1) and 283(1)(a) of the Criminal Act by carrying a deadly weapon or other dangerous object with a deadly weapon or any other dangerous object" and Article 3(1) of the Punishment of Violences Act concerning "a person who committed a crime under Articles 260(1) and 283(1)(b) of the Criminal Act by carrying a deadly weapon or any other dangerous object with a deadly weapon or any other dangerous object" (see Constitutional Court Decision 2014Hun-Ba154, Sept. 24, 2015, etc.). Accordingly, Article 47(3) of the Constitutional Court Act retroactively loses its effect pursuant to Article 47(3) of the same Act.

As a result of the decision of unconstitutionality, in a case where the law or the provision of law on punishment loses its effect retroactively, the defendant's case prosecuted by applying the pertinent provision is not a crime, and thus, the part convicting the above facts charged in the judgment of the court below is no longer maintained.

6. Scope of reversal

Therefore, among the judgment below, the part of the judgment of the court below as to Defendant 1 and Defendant 5's violation of the Punishment of Violences Act (collective, deadly weapon, etc.), murder against Defendant 2 and violation of the Punishment of Violences Act (collective, deadly weapon, etc.) against Defendant 3, murder against Defendant 3 and violation of the Punishment of Violence Act (collective, deadly weapon, etc.) against Defendant 4, and murder against Defendant 4 should be reversed. Since the above part and the remaining guilty part of the defendants are deemed to have a relation of substantive concurrent crimes under the former part of Article 37 of the Criminal Act, the judgment of the court below should be reversed in its entirety.

In addition, the part of the judgment of the court below as to Defendant 5's non-guilty of the charge of the non-guilty of the defendant 5 is not guilty as above, and the fact that the part of the judgment of the court below's conviction against the defendant 5, which is reversed, is in a commercial concurrent relationship

7. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the Defendants, the part of the judgment below against Defendant 1 and the part against Defendant 2, Defendant 3, Defendant 4, and Defendant 5 are reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)