In a case where at least 3 persons gather joint theft and at least 2 persons commit a crime, whether a conspiracy of co-principal is recognized for a person who does not participate in a direct act (affirmative)

In the event that at least two criminal have conspired to commit the larceny and at least two criminal committed the larceny in cooperation at the scene of the crime, taking into account the general theory of the joint principal offender, if at least two criminal have participated in the conspiracy, but did not directly contribute to the commission of the larceny at the scene, as well as other criminal who did not participate in the commission of the larceny at the scene, there is no reason to deny the establishment of the joint principal offender for the larceny. The latter part of Article 331(2) of the Criminal Act does not have a reason to interpret the latter part of the same Act as denying the establishment of the joint principal offender in a case where three or more criminal have conspired to commit the larceny, and at least two persons have committed the crime of joint larceny at the scene of the crime. If the possibility of establishment of the joint principal offender is restricted, the joint principal offender may be punished in an unreasonable manner without aiding and abetting the principal offender at the scene of the crime, and even if it does not exist as a result, the joint principal offender may not be punished in an unreasonable manner.

Articles 30 and 331(2) of the Criminal Act

Supreme Court Decision 4289 Form35 Decided May 1, 1956, Supreme Court Decision 4293 Form60 Decided June 15, 1960, Supreme Court Decision 75Do2720 Decided July 27, 1976 (Gong1976, 9318) (overruled) (overruled)

Defendant

Defendant

Attorney Park Tae-chul

Seoul High Court Decision 97No2329 delivered on January 16, 1998

The appeal shall be dismissed. One hundred days out of the detention days after the appeal shall be included in the original sentence.

The defendant and public defender's grounds of appeal are also examined.

1. On the assertion of violation of the rules of evidence

Examining the evidence admitted by the court of first instance in comparison with the records, the court below's decision that recognized that the defendant committed robbery, bodily injury, and special larceny in the Seoul Central Hospital located in Pungdong-dong around April 18, 1997 as the judgment of the court of first instance, is just, and there is no error of law of misconception of facts due to the violation of the rules of evidence as discussed above. There is no reason to discuss this issue.

2. As to the joint principal offender's assertion that the joint principal offender's co-principal's establishment was established (special larceny that was committed at the ELM convenience store located in Samsungdong around April 18, 1997)

A. The provisions concerning "a person who steals another's property by combining two or more persons" in the latter part of Article 331 (2) of the Criminal Act (hereinafter referred to as "combined larceny") are to punish a person who steals by combining two or more persons on the spot of the crime in a case where the crime of larceny is committed by himself/herself, compared to the case where the criminal committed the larceny by himself/herself, in a case where the crime is committed by himself/herself, the crime is committed in a systematic, collective, and large scale, and the damage resulting from the crime is more likely to occur and the control or arrest of the criminal is difficult, while the criminal's malicious nature is also more strong. Therefore, such an act is to punish him/her

In order to establish joint larceny, two or more criminals should be recruited as subjective requirements, and two or more criminals should share the act of larceny at the site as objective requirements, and the act of larceny is in a cooperative relationship between time and place.

B. Meanwhile, if two or more persons jointly engage in a specific criminal act with another person's act, and if one person is found to have committed a crime based on one's own act, he/she shall be solicited to move to one's own act by using another's act, and even if he/she did not directly participate in the act of larceny, there is no reason to distinguish between one's own act and one's own act of larceny from the fact that he/she committed a crime by using another person's own act (Article 30 of the Criminal Act). Examining the theory of such joint principal offense in relation to joint larceny in the latter part of Article 331(2) of the Criminal Act, if only one criminal committed a larceny independently after two or more criminal conspired to commit a specific criminal act of larceny, it is difficult to establish a joint larceny without meeting the objective requirements of joint larceny. However, if three or more criminal conspired to commit a larceny at least two criminal at the same time and place, and share the larceny with another person's own act of larceny at the same time and place, he/she cannot be evaluated as one's own act of larceny at the above two or more.

In addition, there is no reason to interpret the latter part of Article 331(2) of the Criminal Act as the purport of denying the establishment of a joint principal in a case where more than three persons conspired to commit the crime of joint larceny as above and at least two persons commit the crime of joint larceny. If the possibility of establishment of a joint principal is restricted, there may be unreasonable phenomena that are not punished as a joint principal even though the failure to participate in the act of the joint principal and the degree of contribution to the act is strong. Therefore, in the case of joint larceny, the distinction criteria between the joint principal and the principal and the principal and the principal, and as a result, an offender who does not exist at the scene of the crime, may be punished as a joint principal. On the contrary, if a joint principal and the principal and the principal and the principal are aiding and abetting a criminal who has not been established at the scene of the crime, depending on the situation

The Supreme Court Decision 75Do2720 Decided July 27, 1976, which expressed a different opinion, is to be amended.

C. According to the reasoning of the judgment below, the court below found the defendant guilty of special larceny committed at Samsungdong Samsungdong convenience store around 04:08 on April 18, 1997 by citing the evidence adopted by the court of first instance. However, considering the evidence admitted by the court of first instance after comparing it with the records, the defendant, who is the manager of the store located at the end of Samsungdong, obtained credit cards from the victim's number and obtained the password of credit cards from the victim, and distributed the money from the victim's automatic machines according to the distribution practices of the store from the victim's number, on the premise that the defendant, who is the manager of the store at the end of the first instance judgment, should have received the money from the victim's automatic machines, and the non-indicted 1, 2, and 2, and the defendant's defendant's act of larceny with the victim's own credit cards until he continued to attach the victim within the main place, and there is no error in the judgment below's misapprehension of legal principles as to the defendant's act of larceny from the victim's cash payment of the victim's above.

3. As to the assertion of unfair sentencing

The Defendant and the public defender’s assertion of unfair sentencing is premised on the existence of a violation of the rules of evidence or an error in the misapprehension of legal principles as alleged in the judgment of the court below, and there is no meaning as an independent ground of appeal, and the mere assertion of unfair sentencing in this case where imprisonment for less than 10 years is imposed,

4. Therefore, the appeal shall be dismissed, and part of the detention days after the appeal shall be included in the original sentence as shown in the Disposition above. It is so decided as per Disposition by the assent of all participating Justices.

1. The grounds for appeal are dismissed and 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 and all participating Justices on the bench.