Defendant 1 and two others

Kim Sung-ju

Attorney Park Jong-soo et al., Counsel for the defendant-appellant

Defendant 1 shall be punished by imprisonment for one year and by imprisonment for nine months, respectively.

The 83-day detention days prior to the pronouncement of this judgment shall be included in the above sentence against Defendant 1, and the two-day detention days shall be included in the above sentence against Defendant 2.

However, with respect to Defendant 2, the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

The seized pseudo petroleum 52,00 liter (No. 1) from Defendant 1 and 6,000 liter (No. 2) from Defendant 2 shall be confiscated, respectively.

Defendant 3 is not guilty.

1. Defendant 1

No one shall manufacture and sell pseudo petroleum products or store, transport, or store pseudo petroleum products. On June 30, 2008, around 22:00, at “Pool 157-10,” the Defendant leases 50,000 square meters installed in the above warehouse from 30 square meters (combined)-2 of the oil storage tank (Defendant 2 and 4 of the judgment of the Supreme Court), 1 tank 2 and 3 tank 2 and 2000 mar 2 of the same storage tank 200 mar 20,000 mar 2,000 mar 2,000 mar 2,000 mar 2,000 mar 2,000 mar 2,000 mar 2,000 mar 2,000 mar mar 2,000 mar 2,06 mar mar 2,00 m 2.

2. Defendant 2

From January 1, 2008 to May 30, 200 of the same year, the Defendant was supplied with similar gasoline equivalent to 21.6 billion won market price of 192,00 square meters in total over 32 times in the manner of mixing 2.5t cargo tank oil storage tanks with approximately approximately 6:2:2 of 5t cargo vehicles at the oil storage tank of 2.5t cargo vehicles (vehicle number 1 omitted) and selling them as automobile fuel in Gyeonggi-do around the same period.

From June 22, 2008 to March 30 of the same month, the Defendant continuously purchased similar gasoline equivalent to KRW 30,500,000 from Co-Defendant 1, etc. using 2.5t truck (vehicle No. 1 omitted), and sold it as automobile fuel in Gyeonggi-do around the same period. At around 00:05 on July 1, 2008, the Defendant kept (vehicle No. 1 omitted) cargo from (vehicle No. 5,493 liter market price of KRW 7425,00,00 in cargo on the side of the Nam-gu Incheon Dong-gu Incheon Metropolitan City Fishery Complex around July 1, 2008.

1. Each legal statement of the Defendants, Co-defendant 1, 2, 3, and 4

1. Each protocol of seizure, each list of seizure, each documentary evidence, photograph, test and analysis results;

1. Article applicable to criminal facts;

○ Defendant 1: Article 44 subparag. 3, Article 29 of the Petroleum and Petroleum Substitute Fuel Business Act, and Article 30 of the Criminal Act (with regard to the manufacture and sale of pseudo Petroleum Products in the market, choice of imprisonment with labor),

○ Defendant 2: Article 44 subparag. 3 of the Petroleum and Petroleum Substitute Fuel Business Act and Article 29 (Selection of Imprisonment with Labor, referring to the sale and storage of pseudo Petroleum Products in the market)

1. Inclusion of days of detention in detention;

○ Defendants: Article 57 of the Criminal Act

1. Suspension of execution;

○ Defendant 2: Article 62(1) of the Criminal Act

1. Confiscation;

○ Defendants: Article 48(1) of the Criminal Act

1. Determination of sentence;

○ Defendant 1: A sentence of imprisonment with prison labor for one year is to be imposed, as described in the text, in consideration of the primary sentencing factors that are the primary offender and the primary sentencing factors favorable to the confession, the quantity of pseudo petroleum products manufactured and sold, and the lease of manufacturing facilities, etc. in the course of committing the crime.

○ Defendant 2: the primary offender is the primary offender, and the portion of the offense is the primary sentencing factor favorable to the confession, and taking into account the fact that the amount of the pseudo petroleum products sold after mixing with the investigation as to the accomplice’s portion is not significant, the sentence of 9 months in imprisonment and 2 years in suspension of execution as indicated in the text.

1. Summary of the facts charged

The Defendant employed Co-Defendant 2, from January 2008 to May 30 of the same year, purchased 32 times a sum of 190,00,000 litres and sold a car fuel in Gyeonggi-do for the same period after being supplied with similar gasoline equivalent to KRW 2.1.6 billion market price of 2,00 litres and sold a total of 30,000,000 litres and 30,000 litres and 4,000 litres and 50,000 litres from June 22, 2008 to June 30, 200 of the same year, in collusion with Co-Defendant 1, 205 wres and 30,000 litres and 40,000 litres and 500,000 litres and 400,000 litres and 205,000 wres and 300,000.2.

2. Determination

First, the first and second protocol of interrogation of co-defendant 2 on the police does not recognize its content in the court, so it can not be admitted as evidence of guilt pursuant to Article 312(3) of the Criminal Procedure Act. In addition, among co-defendant 2's legal statement, the part of the statement that he stated in the police as the same content as each protocol of interrogation of a suspect cannot be admitted as evidence of guilt in light of the legislative purport of Article 312(3) of the Criminal Procedure Act.

Then, it is difficult to find the defendant guilty on the third police interrogation protocol, suspect interrogation protocol, prosecutor's protocol except the above exclusion part, and other evidence requested by the prosecutor alone.

However, as shown in the record, it is difficult for the defendant to believe that he was ordered several summary orders to sell pseudo petroleum products, and that Co-Defendant 2 frequently made telephone conversations during the period indicated in the facts charged including before and after the arrest of Co-Defendant 2 (in half, the telephone number of Co-Defendant 2's "le president" claimed in the court as his employer is made only once) and that Co-Defendant 2's statement on the source or circumstance of money deposited in the name of Non-Defendant 3 is hard to believe, as shown in the above facts charged, it is doubtful that the defendant employed Co-Defendant 2 and sold pseudo petroleum products. However, in criminal proceedings, even if the defendant's change is the same as the defendant's mistake, it is difficult for the prosecutor to find it disadvantageous to the defendant, and there is no high probability that the criminal facts can be acknowledged to the extent that there is no reasonable doubt, and even if there is no evidence that there is no doubt as to the defendant's profits in the above part of the charges, it is beyond 1071.

In addition, according to the prosecutor's interrogation protocol, etc. against the defendant, around January 2008, the defendant introduced "le president" as to the sale of similar petroleum products to co-defendant 2, and then introduced "le president" as co-defendant 2 as a driver for transporting similar petroleum products. However, this fact alone is difficult to deem that the defendant has controlled functional acts as co-principal in selling pseudo petroleum products of co-defendant 2, and it is difficult to see that it is included in the above facts charged.

Ultimately, since the above facts charged constitute a case where there is no proof of facts constituting a crime, the judgment of not guilty under the latter part of Article 325 of the Criminal Procedure Act.

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

Judge Lee Jae-soo

1) Article 312(3) of the Criminal Procedure Act (amended by Act No. 8496 of Jun. 1, 2007 and enforced on Jan. 1, 2008) provides that "a suspect interrogation protocol prepared by an investigative agency other than a public prosecutor may be admitted as evidence only when the defendant or his defense counsel admitted the contents thereof." This provision applies not only to the defendant who was a suspect but also to the relation to the other defendant who was a co-suspect, and accordingly, the protocol of interrogation prepared by an investigative agency other than the public prosecutor of other co-defendants or suspects who are co-defendants with the defendant is not sufficient to admit the contents of the suspect who is the original person or his defense counsel, and it should be interpreted that the contents of the protocol of interrogation prepared by the investigative agency other than the public prosecutor of other co-defendants or suspects are admissible only when the defendant or his defense counsel is admitted (refer to Supreme Court Decision 2007Do6129 Decided Oct. 25, 2007).