[1] The case affirming the court below's findings of fact and judgment that the so-called "defabolion," which is a group of violence, constitutes a "crime organization" under Article 4 of the Punishment of Violences, etc. Act

[2] The case holding that "an act of an executive staff member of a criminal organization attending a meeting held to raise a self-esteem of organized life and to prevent an strengthening of organizational unity and a deviation from organization" and "an act of excessive standing of organization by attending various events such as funeral ceremony, marriage ceremony, etc. of staff members of other violent organizations and attending a meeting and his/her subordinate staff member's arrival at the event place, and the so-called "an act of excessive standing of organization" does not constitute "activities" under Article 4 (1) of the Punishment of Violences, etc. Act

[3] The case holding that "a series of acts waiting together with other chief staff in accordance with the emergency communication system in order to prepare for fighting with other violent organizations and oversee the status of the organization" constitutes "activities" under Article 4 (1) of the Punishment of Violences, etc. Act

[1] Article 4 of the Punishment of Violences, etc. Act / [2] Article 4 (1) of the Punishment of Violences, etc. Act / [3] Article 4 (1) of the Punishment of Violences, etc. Act

Defendant 1 and 22 others

Defendants and Prosecutor

Attorney Kang Chang-gu et al.

Busan High Court Decision 2009No385, 420 (Merger) decided August 27, 2009

The part of the judgment of the court below against the defendant 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, and 23 shall be reversed, and this part of the case shall be remanded to the Busan High Court. The appeal by the defendant 13 shall be dismissed.

1. We examine Defendant 1, 3, 4, 5, 6, 7, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20, and 21’s grounds of appeal.

A. Whether the “componion” constitutes a criminal organization

In light of the fact that there are many cases where the relationship between the members of a group of violence appears to be somewhat unstable due to the characteristics of the group of crime, even if it appears to be unclear inside and outside of the country, and the relationship between the members is formed by a command pursuant to the special rules, and the power as an organization or a group is exercised, the "organization for the purpose of crime" under Article 4 of the Punishment of Violences, etc. Act is established with a minimum common system that leads the group or maintains internal order. The crime organization can be established and continued in a variety of forms, and its organization can be established and continued, and unless it is required to be sentenced to punishment, it does not require a clear name or demotion of the organization and special procedure such as the formation of the organization or joining the organization (see Supreme Court Decision 2007Do3787, Nov. 27, 2007).

The lower court determined that the “componion” composed of groups, including the Defendants, is an organization organized for the purpose of committing a crime provided for in the Punishment of Violences, etc. Act, such as exerting the power of the organization and causing bodily injury, and that the organization system, contact system, and code of conduct are strictly equipped, although the name of the two lines, wharfs, executives, and acting members is not used or stipulated, and the intention of the non-indicted 2, is delivered to the subordinate staff, and can be seen as an organization equipped with the minimum common system that maintains the internal order of the organization, such as collective fighting, by allowing the middle staff to gather the opinions of the non-indicted 2, to gather them at a certain place, and the collective fighting can be seen as an organization equipped with the system that maintains the order of the organization.

In light of the above legal principles and the evidence duly examined and adopted by the court below, the court below's fact-finding and judgment are just and acceptable, and there is no error in violation of the rules of evidence as otherwise alleged in the ground of appeal.

B. As to the activity of a criminal organization

In full view of the contents and form of Article 4 of the Punishment of Violences, etc. Act, the purpose of legislation, types of punishment, and degree of punishment, “activities” under Article 4(1) of the Punishment of Violences, etc. Act means active activities aiming at the continuation and maintenance of a crime group or group conducted by a collective decision-making in accordance with the internal discipline and system of command and command of a crime group or group, and the degree of contribution corresponding to those provided for in Article 4(3) and (4) of the Punishment of Violences, etc. Act. In addition, whether a specific act constitutes “activities” as a member of a crime group or group shall be determined practically by comprehensively taking into account the specific circumstances such as the date and time, place and contents of the act in question, motive and purpose of the act in question, relationship between the person who decided the intention and the offender, and the process of delivery of the intention. Thus, even if multiple members are involved, it shall not be deemed that such act constitutes 10 or more passive meetings, such as holding of a criminal group or group or group, etc., or holding of members and shall not be deemed as 108.

(1) The participation in the gathering and various events in the original model restaurant

The court below held on June 2007 that "the act of attending a meeting held by the executive officers and staff members of the vice dong-dong, such as the non-indicted, in the original model restaurant located in the Busan High-dong, Busan High-gu, and in order to strengthen the organizational ties and prevent the escape of organization" and "the act of attending a meeting held in order to strengthen the organizational ties and prevent the escape of organization" and "the act of holding a funeral ceremony, marriage ceremony, pathum, locking, dust-proof, and contents of other violent groups 18 times from the beginning of July 2007 to June 19, 208 and attending various events in the event of the subordinate assistant's arrival at the event place and the subordinate assistant's arrival at the time of the arrival of the event and the subordinate assistant's arrival to the so-called "the act of showing the status of organization" under Article 4 (1) of the Punishment of Violences, etc. Act.

However, in light of the above legal principles, the above acts by the Defendants constitute a case where the Defendants were given a passive instruction or order to participate in a meeting from a superior member, such as the leader or executive officer, etc. of a criminal organization or group, and were merely responding to such instruction or order, or a case where the Defendants held or participated in a private and courtesy ceremony or a congratulations meeting, etc. among the members, and cannot be deemed to have engaged in any act to contribute to the continuation and maintenance of the criminal organization, and it is difficult to deem that there was an activity as a member of the criminal organization. Accordingly, the above Defendants’ assertion pointing this out (excluding Defendant 13 was not prosecuted as the above charges)

(2) The activity of any other criminal organization

The lower court determined that “a series of acts waiting for the Defendants together with other assistant employees in accordance with the emergency communication system in order to prepare for fighting with other violent organizations and teach the status of the organization” constituted “activities” under Article 4(1) of the Punishment of Violences, etc. Act.

In light of the above legal principles, the judgment of the court below is just and there is no error in the misapprehension of legal principles as alleged by the above defendants.

C. The remainder of the above Defendants’ assertion is merely an error in the selection of evidence and fact-finding, which belong to the exclusive jurisdiction of the lower court as a fact-finding court, and thus cannot be deemed a legitimate ground for appeal.

2. We examine the Prosecutor’s grounds of appeal.

After compiling the evidence duly examined and adopted, the lower court determined that Defendant 2, 6, 17, 18, 19, 22, and 23 constituted a general member under Article 4(1)3 of the Punishment of Violences, etc. Act; however, there is insufficient evidence to acknowledge that the case constitutes a “compact” under Article 4(1)2 of the same Act.

In light of the records, the above fact-finding and judgment of the court below are just and acceptable, and there is no error in violation of the rules of evidence as otherwise alleged in the ground of appeal.

3. Scope of reversal

The judgment of the court below as to the remaining 18 persons except the defendant 13 among the defendant 19 persons who filed an appeal is erroneous in finding the defendant guilty of the part that cannot be seen as "activities" under Article 4 (1) of the Punishment of Violences, etc. Act as seen earlier. Since the facts charged in this part of the facts charged are concurrent crimes under the former part of Article 37 of the Criminal Act with the remaining facts charged, the whole judgment of the court below as to the above defendants should be reversed. However, in the case of the defendant 13, the judgment of the court below as to the above defendants shall not be reversed because there is no error as above, and it shall not be reversed (the defendant 13 claims that the punishment is excessive, but in this case where the court below sentenced to imprisonment with labor for less than 10 years against the above defendant, the reasons that the punishment of the court below is unfair cannot

Meanwhile, ex officio, Defendant 2, 18, 22, and 23 did not file an appeal, and only the prosecutor filed an appeal against the above Defendants. However, as seen earlier, there are grounds for reversal of part of the facts constituting the crime which the court below found guilty against 18 remaining Defendants 13 except Defendant 13, and such grounds for reversal also share to Defendant 2, 18, 22, and 23. Thus, the part against the above Defendants is reversed in accordance with Article 392 of the Criminal Procedure Act (see Supreme Court Decision 201Do7056, Apr. 9, 2002).

4. Conclusion

Therefore, the part of the judgment below against the remaining Defendants except Defendant 13 is reversed, and this part of the case is remanded to the court below for a new trial and determination. Defendant 13's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)