[1] Cases where an emergency arrest does not meet the requirements and constitutes an illegal arrest

[2] The case holding that where a credit card company continues to hold the above credit card information after being punished as a violation of Article 70 (1) 6 of the Specialized Credit Financial Business Act with respect to the act of holding another person's credit card information in its mer account, the judgment does not affect the res judicata of the

[3] The scope of reversal in a case where both parties have filed an appeal against the judgment of the appellate court which partially convicted or acquitted the facts of concurrent crimes under the former part of Article 37 of the Criminal Code, but only the prosecutor's appeal is justified

[1] Article 124 of the Criminal Act, Articles 200-3 and 200-5 of the Criminal Procedure Act / [2] Article 70 (1) 6 of the Specialized Credit Finance Business Act, Article 326 subparagraph 1 of the Criminal Procedure Act / [3] Article 37 of the Criminal Act, Articles 383 and 391 of the Criminal Procedure Act

[1] Supreme Court Decision 200Do5701 Decided June 11, 2002 (Gong2002Ha, 1720) Supreme Court Order 2002Mo81 Decided March 27, 2003 (Gong2003Sang, 1117) / [3] Supreme Court Decision 2000Do778 Decided June 13, 200 (Gong2000Ha, 1700) Supreme Court Decision 200Do2123 Decided November 28, 200 (Gong201Sang, 229)

Defendant

Defendant and Prosecutor

Attorney Park Young-chul

Jeonju District Court Decision 2007No1343 Decided February 15, 2008

The judgment of the court below is reversed, and the case is remanded to the Jeonju District Court Panel Division.

We examine the grounds of appeal.

1. Determination on the grounds of appeal by the defendant and his defense counsel

A. As to the assertion that the emergency arrest is illegal

The issue of whether an emergency arrest satisfies the requirements shall not be determined based on the circumstances revealed after the fact, but on the basis of the situation at the time of arrest. The judgment of the investigative authority, such as a prosecutor or a senior judicial police officer, etc., is likely to have a considerable discretion. However, in light of the situation at the time of emergency arrest, if a prosecutor or a judicial police officer’s judgment on whether the requirements are met is considerably unreasonable in light of the empirical rule, the arrest is illegal arrest (see, e.g., Supreme Court Decisions 2000Do5701, Jun. 11, 2002; 2002Mo81, Mar. 27, 2003).

After compiling the adopted evidence, the court below acknowledged the facts as stated in its decision, and determined that the requirements of emergency arrest were satisfied at the time of the arrest of the defendant on the grounds as stated in its decision, and that the emergency arrest against the defendant was lawful by recognizing the fact that the so-called "unfashion principle" was notified during the arrest process of the defendant. In light of the above legal principles and records, the court below's fact-finding and decision are just, and there is no violation of law such as misunderstanding of legal principles as to

B. As to the assertion on fraud by use of computers, etc.

In full view of the admitted evidence, the court below found the facts as stated in the judgment below after recognizing them, and comprehensively taking into account the facts as stated in the list of offenses listed in (2) 1 through 250 attached to the court below, and found the facts guilty as a crime of attempted use, such as computer, etc., as to the facts charged as stated in (2) 293 through 300 attached to the court below, and as to the facts charged in relation to the crime of attempted use, such as computer, etc., the court below's above fact-finding and judgment are just and acceptable, and there is no error of law such as misconception of facts

The precedent pointed out in the ground of appeal is based on the premise that the investigation of this case is by assault, intimidation, etc., and it is not appropriate to invoke this in this case which is not recognized as such.

C. As to the assertion of blanket crime

In light of the records, the court below is just in holding that each of the computers of this case was punished as concurrent crimes under the former part of Article 37 of the Criminal Act, and there is no error of law in the misapprehension of legal principles concerning comprehensive crimes and concurrent crimes as otherwise alleged in the ground of appeal.

The Supreme Court precedents pointed out in the grounds of appeal are not appropriate to be invoked because they do not directly relate to the issues of this case.

D. As to the allegation on guilty of violating the Specialized Credit Finance Business Act

In light of the adopted evidence, the court below found the defendant guilty of holding another person's credit card information as stated in (1) through (17) of the crime list 1 through 17 attached to the court below from July 1, 2007 to August 27, 2007. The ground of appeal that the above other person's credit card information was not held in the above Medi account during the period from July 26, 2007 to August 27, 2007 is hard to be viewed as a legitimate ground of appeal as an illegal cause affecting the result of the judgment of the court below. In light of the records, the above fact-finding and decision of the court below are just, and there is no error of law such as omission of judgment or misconception of facts due to insufficient deliberation as otherwise alleged in the ground of appeal.

2. Judgment on the grounds of appeal by the prosecutor

As to the facts charged in violation of the Specialized Credit Financial Business Act stated in [Attachment 18 through 65] of the lower judgment, the lower court determined that ① the Defendant was sentenced on November 30, 2005 by the Seoul Central District Court for a violation of the Specialized Credit Financial Business Act, etc. and confirmed August 24, 2006; ② the facts acknowledged in the above final judgment include the following facts: “The Defendant sent another person’s credit card information (hereinafter “the instant credit card information”) as indicated in [Attachment 1 omitted) 18 through 65 to the “No. 1 omitted”) account and stored the above account from October 31, 2004 to April 11, 2005; ③ the Defendant was also released to the police account under the name of the Nonindicted Party, which was managed by him, with the consent of the Nonindicted Party friendly, and thus, the Defendant was also aware of the fact that the Defendant had never been released to the e-mail account in the process of the instant investigation.”

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

According to the records, the defendant was indicted for a violation of a specialized credit financial business prior to the prosecution, etc., and on April 27, 2006, the appellate court was sentenced to imprisonment of one year and six months at the Seoul Central District Court, which was the appellate court, and dismissed the appeal, and the judgment became final and conclusive August 24, 2006. The criminal facts acknowledged in the final and conclusive judgment include the fact that the credit card information of this case was sent to the e-mail account "( Address 1 omitted)" and stored the information of this case from October 31, 2004 to March 24, 2005. After that, even if the defendant had been punished on June 30, 207, the defendant continued to possess the former credit card information of this case which was stored in the e-mail account under the name of the non-indicted who was under his control, and thus, it constitutes an unlawful act of transmitting the former credit card information of this case to the e-mail account and thus, it cannot be seen that it was an unlawful act of violating under Article 670.7.

Nevertheless, the court below erred by misapprehending the legal principles as to acquittal judgment, which affected the conclusion of the judgment. Therefore, the prosecutor's ground of appeal pointing this out is with merit.

3. Scope of reversal

A part of the appellate court's judgment of conviction and a part of the judgment of innocence, and both the defendant and the prosecutor filed an appeal against the judgment of acquittal. However, in a case where the defendant's appeal against the conviction part is without merit and only the prosecutor's appeal against the acquittal part is with merit, if the crime recognized as guilty and the crime not guilty are concurrent crimes under the former part of Article 37 of the Criminal Act, the guilty part of the judgment of the appellate court shall also be reversed (see Supreme Court Decision 2000Do2123, Nov. 28, 200, etc.).

According to the above legal principles, the judgment of the court below cannot be exempted from reversal, and since the judgment of the court below which found the guilty and the judgment of the above acquittal are concurrent crimes under the former part of Article 37 of the Criminal Act, the whole of the judgment of the court below should be sentenced to a single punishment. Accordingly, the judgment of the court below should be reversed

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court 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 Ahn Dai-hee (Presiding Justice)