Defendant 1 and 20 others

Defendant 1 through 16, Defendant 18, 20, 21 and the Prosecutor

Scargs

Attorneys Dog-ho et al.

Cheongju District Court Decision 2007Gohap182-1 (Separation), 196, 215, 217, 231, 208Gohap25, 26 (each consolidation) decided May 1, 2008

1. Of the judgment of the court of first instance, the part on Defendant 2, 5 (Defendant 2 of the judgment of the Supreme Court), 6, and 16 shall be reversed.

Defendant 2 and 6 shall be punished by imprisonment for two years, by imprisonment for one year and six months, and by imprisonment for one year and six years, and by imprisonment for one year.

The number of days under detention prior to the pronouncement of the first instance judgment shall include 225 days in the above sentence against Defendant 2, 178 days in the above sentence against Defendant 5 and 6, and 91 days in the above sentence against Defendant 16.

However, the execution of the above sentence against Defendant 2, 5, 6, and 16 shall be suspended for three years from the date this judgment became final and conclusive.

To order Defendant 2, 5, 6, and 16 to provide community service and probation for 200 hours.

2. Defendants 1, 3, 4, 7 (Defendant 3 of the judgment of the Supreme Court), 8, 9, 10, 11 (Defendant 7 of the judgment of the Supreme Court), 12, 13 (Defendant 8 of the judgment of the Supreme Court), 14 (Defendant 9 of the judgment of the Supreme Court), 15 (Defendant 10 of the judgment of the Supreme Court), 18, 20 (Defendant 11 of the judgment of the Supreme Court), and 21 (Defendant 12 of the prosecutor’s judgment of the Supreme Court), and the prosecutor’s appeal against Defendant 1, 3, 4, 8, 9, 10, 12, 17, 18, 19, 20, and 21 (Defendant 12 of the judgment of the Supreme Court) are dismissed, respectively.

The judgment of the court of first instance on the defendant 7, 11, 14, and 15 of 152 days out of the number of days of confinement before the pronouncement of this judgment shall be included in each sentence.

1. Summary of grounds for appeal;

A. Defendants

○ Defendant 1

The misunderstanding of legal principles or mistake of facts (as to the activities of a criminal organization under subparagraph 4-d and paragraph (e) of the judgment of the court of first instance (including facts in the field, but not limited to the activities of a criminal organization; the acts of the defendants are not aimed at the activities of a criminal organization, but not falling under the activities of a criminal organization as a private and formal exchange)),

○ Defendant 2

Legal principles or mistake of facts [as regards the activities of a criminal organization under Article 4-1, (b), (c), and (e) of the Judgment of the first instance (at the site, there is a fact, but is not a criminal organization activity. Defendants' activities are not limited to the activities of a criminal organization, but not a criminal organization activity as a private and formal exchange activity)] ] Sentencing, or Sentencing.

○ Defendant 3

Legal principles or mistake of facts (as to the activities of a criminal organization under Article 4-1, (b), (c), and (e) of the judgment of the first instance court (at the site, there is a fact, but is not a criminal organization activity. Defendants' activities are not limited to the activities of a criminal organization, but not a criminal organization activity as a private and formal exchange activity)), mental and physical disorder (the "injury, such as group, deadly weapons, etc." against Nonindicted 1), and the imposition of penalties.

○ Defendant 4

Legal principles or mistake of facts [Article 4-1, (2), (3), and (5) of the Judgment of the first instance (at the site, there are facts on the site, but not on the activities of a criminal organization. The Defendants’ activities are not for the activities of a criminal organization, but not for the activities of a criminal organization)], and unreasonable sentencing], and unfair sentencing

○ Defendant 5

Legal principles or mistake of facts [the defendants' actions are not for the purpose of criminal organization activities, but for the purpose of criminal organization activities. They do not fall under the activities of criminal organization activities as private and formal exchange activities as provided in paragraph 4(c) of the judgment of the court of first instance], and the imposition of penalties.

○ Defendant 6

misunderstanding of facts (as to the co-injury (as to the harm caused by the defendant 4, the defect caused by the defendant 4 was contacted and there was a fact between the "Cheongsong" around August 12, 2007, and around 02:30 on August 12, 2007, but it was the situation in which the fighting has already been completed after the arrival of the defendant)), and

○ Defendant 7

Error of fact [No. 4-C. of the first instance court's decision (limited to a fact that there is no fact at the site, and rather, a fact that a person refuses to use a call which was made several times)]

○ Defendant 8

Legal principles or mistake of facts (as to the activities of a criminal organization under paragraph (f) of the Decision 4 of the first instance court (at least, there is a fact in the field, but not in the activities of a criminal organization; the Defendants' activities are not limited to the activities of a criminal organization, but not falling under the activities of a criminal organization as a private and formal exchange)), and the sentencing

○ Defendant 9

Legal principles or mistake of facts (as to the activities of a criminal organization under paragraph (f) of the Decision 4 of the first instance court (at least, there is a fact in the field, but not in the activities of a criminal organization; the Defendants' activities are not limited to the activities of a criminal organization, but not falling under the activities of a criminal organization as a private and formal exchange)), and the sentencing

○ Defendant 10

The misunderstanding of legal principles or mistake of facts (as to the activities of a criminal organization under subparagraph 4-D and paragraph (f) of the first instance judgment (including facts in the field, but not engaged in activities of a criminal organization); the Defendants' activities are not aimed at the activities of a criminal organization; and they do not fall under the activities of a criminal organization as a private and formal exchange) and the imposition of penalties

○ Defendant 11

The misapprehension of the legal principles or mistake of facts (as to the activities of the 4-D criminal organization in the judgment of the court of first instance (including facts on the spot, but not engaged in the activities of the criminal organization); the defendants' activities are not aimed at the activities of the criminal organization; and they do not constitute the activities of the criminal organization as private and formal exchange activities) and the imposition of penalties.

○ Defendant 12

The misunderstanding of legal principles or mistake of facts (as to the activities of a criminal organization under subparagraph 4-A, (b), and (c) of the judgment of the court of first instance (at the site, there is a fact, but is not a criminal organization activity; the Defendants' activities are not limited to the activities of a criminal organization, but do not constitute a criminal organization activity as a private and formal exchange activity)), and sentencing

○ Defendant 13

Legal principles or mistake of facts (as to the activities of the 4-D criminal organization in the judgment of the first instance (including facts in the field, but not engaged in the activities of the criminal organization)

○ Defendant 14

The misapprehension of the legal principles or mistake of facts (as to the activities of the 4-D criminal organization in the judgment of the court of first instance (including facts on the spot, but not engaged in the activities of the criminal organization); the defendants' activities are not aimed at the activities of the criminal organization; and they do not constitute the activities of the criminal organization as private and formal exchange activities) and the imposition of penalties.

○ Defendant 15

Legal principles or mistake of facts [the defendants' actions are not for the purpose of criminal organization activities, but for the purpose of private and formal exchange activities], mistake of facts [the conduct of violence], mental and physical disorder (no one has exercised violence) as to the conflict under the 6th decision of the first instance court), and imposition of penalties.

○ Defendant 16

Sentencing Points

○ Defendant 18

Sentencing Points

○ Defendant 20

Legal principles or mistake of facts [the fact that the activities of the 4-A criminal organization in the judgment of the court of first instance (if there is a fact that the 4-A criminal organization is subject to the so-called 's exclusion' in Schlage, it shall be the case that the vessel's crew members are forced to take time)], and the amount of punishment in excess of

○ Defendant 21

Legal principles or mistake of facts [ although there is a fact that the Defendants' acts are so-called "a" as to the activities of a criminal organization under Article 4-A and paragraph (b) of the first instance judgment (the acts of the Defendants are not aimed at the activities of a criminal organization, but does not fall under the activities of a criminal organization as private and formal exchange)];

(b) Prosecutors;

○ (as to the acquittal of Defendant 6, 20) of mistake of facts

○ Legal principles (as to the activities of each criminal organization against Defendant 1, 2, 3, 4, 6, 10, 12, 16, 17, 18, 19, 20, and 21)

○ Sentencing (as to Defendant 4, 6, 8, 9, 10, 16, 17, 18, 19)

2. Determination

A. The defendants' misapprehension of legal principles or misconception of facts

(1) Defendants’ misapprehension of legal principles or misconception of facts as to the conduct of criminal organization activities

(A) As to the assertion that each of the instant groups did not constitute a criminal organization activity as a private and formal exchange act, or that there was no purpose of criminal organization activity at the time

"Activities" under Article 4 (1) of the Punishment of Violences, etc. Act means all activities conducted by a criminal organization or a member of the organization to maintain and strengthen the organization or organization. However, it does not fall under the extent of private and courtesy exchange activities, such as participation in congratulatory investigations among the members. On the other hand, whether a member's specific activity constitutes a member's activity or a private and courtesy act should be determined by comprehensively taking into account the specific circumstances such as the date, place and contents of the activity, motive and circumstance leading up to the activity, relationship between the decision-making person and the executor, and the process of delivery thereof.

According to the reasoning of the judgment of the court of first instance, since the Defendants were not aware of the facts charged during the 1st century and the 1st century's activities, the Defendants' act was conducted for the purpose of maintaining the order of deceptive scheme as one of the general characteristics at the time, and the so-called marcing employees' act was conducted for the purpose of maintaining the order of deceptive scheme. The Defendants' act was conducted for the purpose of maintaining the 1st century's organization's marcing and holding that the Defendants' act was conducted for the purpose of maintaining the order of deceptive scheme. The Defendants' act was conducted for the purpose of organizing and maintaining the 1st century's marcing organization's marcing organization's marcing organization's marcing organization's marcing organization's marcing organization's marcing organization's marcing and marcing organization's marcing organization's marcing organization's marc activities.

Examining the reasoning of the judgment of the first instance court in light of the relevant legal principles and records, the first instance court fully affirms the determination that each of the above acts committed by the Defendants constitutes the activities of the Defendants as a member for the maintenance and strengthening of the "Mara Mara" and "Mara Mara Mara", which are a criminal organization, and there is no error of law by misunderstanding

(B) The part concerning Defendant 7’s assertion

Defendant 7 asserts that there is no fact between the dry field park, which is the scene of the crime as set forth in Article 4. C. of the first instance judgment. However, in full view of the evidence duly adopted and examined by the first instance court, in particular, the evidence duly adopted and examined at investigation agencies of Nonindicted 2, etc., who were in the dry field park at the time, and the telephone call details between Defendant 7 and Defendant 5 at the time of the instant case, and the result of the call call call, Defendant 7 recognized the fact that Defendant 7 served as the assistant staff of the organization, as stated in the first instance judgment, to deliver the direction of emergency call of dry field park, and it is difficult to reverse this by the statement of Nonindicted 3 at the trial.

(C) The part of the defendant 20's assertion

Defendant 20 asserted that Defendant 20, etc., who met the so-called "abdomination" in Schlage, constitutes an act of force majeure by coercion by vessel steering staff. However, Defendant 20 et al., upon being aware of the developments leading up to Schlage and the characteristics of the criminal organization, upon being aware of the fact that Defendant 20 et al. was gathered in Ssch Rexroth, and Defendant 20, who was affiliated with Ssch Rexroth, was bound to respond to the demand for the dispatch of vessel, and the organization was bound by so-called "abdomination". Thus, it cannot be deemed that it constitutes a case where it is difficult to expect that Defendant 20 et al., was forced solely on the ground that it was by the instruction

(2) misunderstanding of facts as to Defendant 6’s joint injury

In full view of the evidence adopted and examined by the first instance court as to this part of the facts charged, it is recognized that Defendant 6, as indicated in the judgment of the first instance court, etc. inflicted a bodily injury on the victim Nonindicted 1 at the place where he exercised violence against the victim Nonindicted 1, and the statement made by Nonindicted 1, 2, and 4 in the trial alone is difficult to reverse this.

B. misunderstanding of facts and assertion of mental or physical disorder as to Defendant 15’s attack

In full view of the evidence adopted and examined by the first instance court as to this part of the facts charged, Defendant 15 can sufficiently recognize the fact that Defendant 15 conspireds with the victim as stated in the judgment of the first instance court, and Defendant 15 at that time is deemed to have been in a state of drinking, but it does not seem to have led to the fact that Defendant 15 did not have the ability to discern things or make decisions.

C. Defendant 3’s mental and physical assertion

Although Defendant 3 was in a state of drinking alcohol at the time of committing the “injury to a group, deadly weapon, etc.” with the victim Nonindicted 1, it does not seem that the victim did not have any or weak ability to discern things or make decisions.

D. Judgment on the prosecutor's assertion of mistake of facts

As indicated in Article 4-b of the first instance court's decision, Defendant 6 and 20, in collusion with Defendant 16, etc. on October 2006, the first instance court determined that Defendant 6 and 20 asserted that Defendant 6 and 20 consistently acted as a member of a criminal organization in Samil Park, which is a criminal organization, to maintain and strengthen the "Marara sect", and that their statements in the prosecutor's protocol of examination on Defendant 17, 19, and 21 do not correspond to the above facts charged, and that each statement in the prosecutor's protocol of examination on Defendant 17, 17, 19, and 21, which appeared to correspond to the above facts charged, are nothing more than those on the side of the prosecution that Defendant 6 and 20 were in a Sejong Park, but the same as Defendant 6 and 20 were in a third-party park, and that Defendant 17, etc. did not clearly appear as a witness in the court as a witness, and that there was no evidence to find otherwise.

Examining the reasoning of the judgment of the first instance in comparison with the records, we fully affirm the first instance court’s judgment that acquitted Defendant 6,20 of this part of the facts charged.

E. Judgment on the misapprehension of the legal principle by the prosecutor

(1) Prosecutor's assertion

The crime of violating the Punishment of Violences, etc. Act on the Punishment of Violences, etc. of Criminal Group Activities is established separately for each specific activity, and where a member of the criminal organization has engaged in activities of the criminal organization several times to continue to exist and maintain as a member, each crime of the criminal organization activities is in the relation of substantive concurrent crimes, not in the relation of a single comprehensive crime.

(2) Determination

Article 4(1) of the Punishment of Violences, etc. Act provides that not only the act of organizing an organization or group with the purpose of committing a crime, or joining such an organization or group, but also the act of "activities" as a member shall be punished.

The legislative purpose of the above Act, which provides for punishment for the activities of members of a criminal organization separate from acts of organizing or joining a criminal organization that has been subject to punishment, is to supplement the problems that could not be punished any more in cases where the statute of limitations has been imposed only once or the statute of limitations has expired, since the organization and joining of a criminal organization is established and completed simultaneously with the act of organizing or joining a criminal organization.

“Activities” as members of a criminal organization under Article 4(1) of the Punishment of Violences, etc. Act refers to all activities conducted for the maintenance and strengthening of such organization or organization as members of an organized body with a minimum command system, even though conducted by many and specified persons, under the common purpose of committing a crime under the same Act. As long as the concept of a criminal organization itself includes the elements of continuity itself, it is reasonable to view that activities conducted for the maintenance and strengthening of such organization in the position of its members also involve continuity.

In light of the legislative purpose, literal meaning, etc. of the above provision, it is reasonable to view that a series of acts performed by the same criminal defendant for the continuance and maintenance as a member of a specific criminal organization is in the relation of a comprehensive crime.

Therefore, it is justifiable to determine that the activities of each of the instant criminal organizations against Defendant 1, etc. are in the relation of a single comprehensive crime.

F. Determination on the Defendant 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 14, 15, 16, 18, and 20 of the sentencing division, and the Prosecutor’s Defendant 4, 6, 8, 9, 10, 12, 16, 17, 18, and 19 of the Criminal Procedure Act

(1) As a member of a criminal organization, the Defendants’ activities of the criminal organization that aim to maintain and strengthen the organization by gathering fighting between the members and other members in different places at the night and meeting to take measures against the investigation agency in order to cope with the fighting between them, are highly dangerous. However, on the other hand, the main crime of the instant case is not a systematic and planned act between the members of other criminal organizations, but rather a systematic and planned act between the Defendants or a third party except the first violent act.

(2) Defendant 3 and 4

Defendant 3 and Defendant 4, each of the “Pada Sada wave” 9, constitutes the number of sada sada sada sada sada sama among the Defendants, who are members of the management organization of the “Pada sada sada sama,” and participated in the activities of each

Defendant 3 has a large degree of use of violence, such as displaying the camping net, which is a dangerous object, in a violent case where he provided a saturine with the saturine in comparison with Defendant 3.

Defendant 4 had the record of being sentenced to 10 years of imprisonment due to murder in around 1993, and 1 year and 6 months of imprisonment due to violence in around 198, and 4. A and (b) of the judgment of the first instance, the crime of collective activity in the crime of crime in paragraph (1) constitutes repeated crimes.

In full view of the various sentencing conditions on Defendant 3 and Defendant 4, which appear in the record, the first instance sentence sentenced to two years and six months to Defendant 3, within the scope of the applicable sentences, where the statutory penalty is more than three years, and the statutory penalty against Defendant 4 is more than two years, with respect to the crime of concurrent crimes, within the scope of the applicable sentences where the crime of violation of the Punishment of Violences, etc., such as a group, deadly weapon, etc., which is imprisonment with prison labor for more than three years, is deemed unreasonable or unreasonable.

(3) Defendant 11, 12, 14, 15, 18, 20

In full view of the circumstances surrounding the instant case and the criminal records of the said Defendants (which cannot be sentenced to a suspended sentence because they are still under the period of suspended sentence or repeated crimes), and the degree of participation in the instant crime, etc., the sentence of each of the first instance judgment sentenced by the first instance court to the said Defendants [Defendant 11, 12, 14, 15, 20 (each one year of imprisonment), and Defendant 18 (one year and six months of imprisonment)] cannot be deemed to be too heavy or unreasonable.

(4) Defendant 1, 8, 9, 10, 17, 19

In full view of the background of the instant case, the criminal records of the said Defendants, and the degree of participation in the instant crime, etc., the first instance court’s sentence [Defendant 1, 17, 19 (one year and six years of imprisonment), Defendant 8, 9, and 10 (one year of imprisonment, one year of suspended execution, and three years of suspended execution) imposed on the said Defendants cannot be deemed to be too heavy or unreasonable.

(5) Defendant 2, 5, 6, 16

In full view of the circumstances leading up to the crime of this case and the overall sentencing conditions against the above Defendants revealed by the records, it is deemed that the sentence of imprisonment (Defendant 2 (two years of imprisonment), five (one year of imprisonment), six (two years of imprisonment), and 16 (one year and six months of imprisonment) imposed on the above Defendants is too unreasonable.

3. Conclusion

Therefore, pursuant to Article 364(4) of the Criminal Procedure Act, Defendant 1, 3, 4, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, 20, and 21 of the public prosecutor’s appeal and Defendant 1, 3, 4, 8, 9, 10, 12, 17, 18, 19, 20, 20, and 21 of the Criminal Procedure Act shall be dismissed, and one 152 days out of 167 days from confinement days before the pronouncement of this judgment shall be included in each sentence, and pursuant to Article 364(6) of the Criminal Procedure Act, Defendant 2, 5, 6, and 16 of the judgment of the court of first instance shall be reversed as follows.

All of the judgments of the court of first instance, except for changing "a person who is currently under the grace period after the judgment becomes final and conclusive" to "a person for whom the judgment becomes final and conclusive" in each part of the criminal records of the defendant 2, 5, 6, and 16 from the facts of the judgment of the court of

1. Article applicable to criminal facts;

○ Defendants: Article 4(1)3 of the Punishment of Violences, etc. Act and Article 30 of the Criminal Act (including the activities of criminal organizations, but referring to the activities of each criminal organization with respect to Defendants 2 and 16)

○ Defendant 2 and 6: Articles 2(2) and 2(1)3 of the Punishment of Violences, etc. Act, Article 257(1) of the Criminal Act (the point of joint injury) and the choice of imprisonment.

○ Defendant 5: Article 257(1) of the Criminal Act (the point of injury) and choice of imprisonment

1. From among concurrent crimes (defendants 2, 5, and 6)

Article 37 (Case of the former part of Article 37, Article 38 (1) 2, and Article 50 (Case of Punishment of Violence, etc. (Organization and Activities of Organizations, etc.) of the Criminal Act with Respect to Punishment of Minor Offenses, etc. (Punishment of Organizations, etc.)

1. Discretionary mitigation (as to Defendant 5, 16);

Articles 53 and 55 (1) 3 of the Criminal Code

1. Inclusion of days of detention in detention;

Defendants: Article 57 of the Criminal Act

1. Suspension of execution;

Article 62 (1) of the Criminal Code

1. Probation and community service order;

Article 62-2 of the Criminal Code

Of the facts charged in the instant case, the summary of the violation of the Punishment of Violences, etc. by Defendant 6’s activities in Samil Park as to Defendant 16 in collusion with Defendant 16, etc., thereby working as a member of the "Mara Mara sect", which is a criminal organization, by a resolution of the continuation and maintenance of organization by making a 'emergency call' as described in Article 4(b) of the judgment. As seen in the judgment of the grounds for appeal, this part of the facts charged is when there is no proof of a crime, and thus, should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, but as long as it is found guilty of Article 4(a) of the judgment in relation to a single comprehensive crime, it shall not be

It is so decided as per Disposition for the above reasons.

[Attachment Form 3]

Judges Kim Sang-ok (Presiding Judge)