In the event that several persons conspired to commit a crime and only a part of them executed a crime, whether all the competitors are joint principal offenders (affirmative)

"When two or more persons jointly commit a crime" in Article 30 of the Criminal Code does not necessarily mean only the case where they are jointly processed in the execution of all or part of the acts constituting the constituent elements of a crime, but also the case where several persons jointly gather the commission of a crime and carry out a joint will, they shall be punished as a principal offender.

Article 30 of the Criminal Act

Supreme Court Decision 83Do1942 delivered on October 11, 1983 (Gong1983,1681) 84Do1383 delivered on September 11, 1984 (Gong1984,167) 87Do2368 delivered on April 12, 1988 (Gong1988,965)

Defendant

Defendant

Attorneys Kim Won-won et al.

Daegu High Court Decision 90No267 delivered on June 27, 1990

The appeal is dismissed.

32 days of detention after an appeal shall be included in the calculation of the original sentence.

The grounds of appeal by the defendant and defense counsel are examined together.

In Article 30 of the Criminal Code, "when two or more persons jointly commit a crime" does not necessarily mean that a crime is committed in whole or in part, which constitutes the elements of a crime, and even where several persons jointly gather the commission of a crime and jointly commit a crime in order to implement the common will, the conspiracy is punished as a principal offender (see, e.g., Supreme Court Decision 84Do1383, Sept. 11, 1984; Supreme Court Decision 83Do1942, Oct. 11, 1983).

Examining the evidence of the first instance court cited by the court below in comparison with the records, it is reasonable that the court below affirmed the defendant's first instance court's conviction of committing a crime such as murder at the time of the first instance trial along with the co-defendants of the court below and maintained the first instance court's judgment by finding the defendant guilty of committing a crime in violation of the Punishment of homicide and Violences, etc. Act at the time of the first trial against the defendant in the same purport, and there is no violation of the rules of evidence or misapprehension of the legal principles as to co-principal

The theory of lawsuit is as follows. First, in the case of joint principal offender, the part of the judgment of the court below is merely an incidental judgment and does not affect the conclusion of the judgment, so long as the defendant is the principal offender of each crime by participating in the conspiracy of the crime, and as long as the defendant is the principal offender of each crime by participating in the conspiracy of the crime, the part of the judgment of the court below does not affect the conclusion of the judgment. Second, the court below's decision that the defendant is punished as the principal offender on the ground that the defendant was found to have participated in the crime before the commencement of the commission of the conspiracy.

In addition, in this case where a sentence of less than 10 years of imprisonment is imposed, it does not constitute a legitimate ground for appeal. The arguments will return to the effect that both are reasonable.

Therefore, the appeal shall be dismissed, and 32 days of detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jong-soo (Presiding Justice) Lee Chang-soo Kim Jong-won