The meaning of “the act of making an accomplice escape” in the crime of capital flight / Whether the crime of capital flight can be established in a case where an accomplice escape (affirmative), and whether the act of capital flight by himself/herself is punished in a case where an accomplice is investigated as a witness or a suspect in the investigation procedure for the crime (negative)

In the crime of escape of a criminal under Article 151 of the Criminal Act, "the act of aiding and abetting" means any act which makes it difficult or impossible to function as a criminal justice, such as investigation, trial, execution of a sentence, etc. by any means other than concealment.

The crime of attempted flight of an offender may be established in cases where another person is allowed to escape. Here, the act of attempted flight of an offender is included in the other person, but the act of attempted flight of an accomplice is not punished. Also, it cannot be deemed that the act of attempted flight of an accomplice by making a false statement on facts constituting his/her crime and submitting false materials after being investigated as a witness or a suspect in the investigation procedure regarding the crime is beyond the scope of the exercise of his/her right to defense against the crime. Even if such act results in allowing other accomplices to escape, it cannot be punished as the crime of attempted flight of an offender. In such a case, even if an accomplice instigated such act, it is merely an act of aiding

Articles 30, 31(1), and 151 of the Criminal Act

Supreme Court Decision 2007Do11137 Decided December 24, 2008 (Gong2009Sang, 135) Supreme Court Decision 2012Do1399 Decided January 10, 2013

Defendant 1 and two others

Defendant 2 and Prosecutor

Busan District Court Decision 2015No2508 Decided December 11, 2015

All appeals are dismissed.

The grounds of appeal are examined.

1. Judgment on Defendant 2’s grounds of appeal

According to Article 383 subparag. 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed, an appeal may be filed on the ground of unfair sentencing. In this case where Defendant 2 was sentenced to a more minor sentence, the argument that the punishment is too unreasonable is not a legitimate

2. Judgment on the grounds of appeal by the prosecutor

A. Summary of the facts charged concerning the escape of the offender and the aiding and abetting of the offender

Defendant 2 transferred the call text to the Nonindicted Party, and changed the name of the Nonindicted Party’s business operator to Defendant 3 while opening and operating another call text from the nearby areas. After that, the Nonindicted Party filed a lawsuit against Defendant 2 seeking the prohibition of the operation of call text text, prohibition of disposition, etc., and Defendant 2 changed the name of the business operator of call text to Defendant 1 with the consent of Defendant 2 in order to avoid compulsory execution of the judgment following the said lawsuit.

As Defendant 2 and Defendant 3 were accused of a crime of evading compulsory execution from the Nonindicted Party, they asked Defendant 1 to purchase call text and actually operate it. Defendant 1, in the accusation case against Defendant 2 and Defendant 3, stated that they actually purchased call text and submitted the details of false account transaction to the police officer, and the Prosecutor’s Office also made a statement to the same effect. Since the Nonindicted Party filed a complaint against Defendant 1 due to the crime of evading compulsory execution, Defendant 2 and Defendant 3 made the same request with the same request from the police officer, and Defendant 1 made a false statement at the same time and submitted false account transaction details. Accordingly, Defendant 2 and Defendant 3 instigated Defendant 1 to escape from criminal, and accordingly, Defendant 1 got Defendant 2 and Defendant 3 escape from criminal.

B. The judgment of the court below

For the following reasons, the lower court acquitted the criminal suspect on the charge of aiding and abetting the criminal escape ex officio.

If one of the accomplices has a close relation with the concealment of his/her own crime to allow the escape of another accomplice, there is no possibility of expectation of lawful act like his/her own escape. The Defendants’ act of aiding and abetting the escape of the criminal as a co-principal of the crime of evading compulsory execution and the act of aiding and abetting the criminal from committing the crime is closely related to the concealment of his/her own crime, and it is difficult to view it as abuse of his/her right of defense.

C. Supreme Court Decision

(1) In the crime of aiding and abetting a criminal under Article 151 of the Criminal Act, "the act of aiding and abetting a criminal" refers to any act other than concealment which makes it difficult or impossible to act as a criminal justice such as investigation, trial, execution of a sentence, etc. (see Supreme Court Decision 2007Do1137, Dec. 24, 2008, etc.).

The crime of attempted flight of an offender may be established in cases where another person is allowed to escape. Here, the act of attempted flight of an offender is included in the other person, but the act of attempted flight of an accomplice is not punished. Also, it cannot be deemed that the act of attempted flight of an accomplice by making a false statement on facts constituting his/her crime and submitting false materials after being investigated as a witness or a suspect in the investigation procedure regarding the crime is beyond the scope of the exercise of his/her right to defense against the crime. Even if such act results in allowing other accomplices to escape, it cannot be punished as the crime of attempted flight of an offender. In such a case, even if an accomplice instigated such act, it is merely an act of aiding

(2) Examining the facts charged above in light of the aforementioned legal principles and the records of the instant case, the following conclusion can be derived.

In the instant case, the crime committed by Defendants 2 and 3, who are the object of criminal escape, was committed by falsely transferring call text to Defendant 1 for the purpose of avoiding compulsory execution, thereby disadvantageous to the creditor, and Defendant 1 may be deemed joint principal offenders of the crime of evading compulsory execution in view of the form of act or the degree of involvement as a false assignee. In the case of criminal complaint against Defendants 2 and 3, the investigation into Defendant 1 was conducted with respect to whether Defendant 2 and 3 was falsely acquired the call text. However, among the facts constituting the crime committed by all of the accomplices including Defendant 1, the mere facts pertaining to the crime committed by Defendants 2 and 3 cannot be separated. Defendant 1 made a false statement that Defendant 2 and 3 were actually transferred the call text and submitted false materials, and even if that result in Defendant 2 and Defendant 3’s escape, the crime of capital flight cannot be established. This also applies to the case of criminal complaint against Defendant 1. The same applies to the case where Defendants 2 and 3 instigated such an act.

The lower court’s conclusion of not guilty of the charges concerning the escape of an offender and the aiding and abetting of an offender is correct. In so determining, the lower court did not err by misapprehending the legal doctrine on the escape of an offender and the aiding and abetting of an offender.

3. Conclusion

The Prosecutor and Defendant 2’s final appeal are all dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min You-sook (Presiding Justice)