[1] The validity of an indictment based on an illegal undercover operation (negative) and whether an illegal undercover operation constitutes an illegal undercover operation where it is merely a mere provision of an opportunity to commit a crime to a person who has a criminal intent (negative)

[2] The case holding that a police officer's surveillance is being conducted in the vicinity of a guest who was used in the park delivery in order to control the so-called thief crime against a guest, and that, in a case where a defendant was arrested and prosecuted on the ground that he was 10 meters away from the defendant's appearance, leading the degree of 10 meters to the degree of thief, and the defendant was arrested and prosecuted on the ground that the police officer did not institute a public prosecution based on an illegal act

[1] A vessel investigation that induces a person who does not have the original criminal intent to commit a crime by using deceptive means, schemes, etc. by causing the investigation agency to arrest the criminal, cannot be exempt from the illegality of such a crime. A public prosecution based on such a vessel investigation constitutes a case where the procedure is invalid in violation of the provisions of the law. However, if it is merely a mere provision of an opportunity to commit a crime to a person who has the criminal intent, it cannot be readily concluded as an illegal vessel investigation.

[2] The case holding that a police officer's surveillance is conducted in the vicinity of a guest who was used in the park delivery in order to control the so-called thief that thief against a guest, and that in a case where the defendant was arrested and prosecuted on the spot by leading the degree of 10 meters to the degree of 10 meters as the defendant appeared, and the defendant was arrested and prosecuted on the part of the subsequent prisoner, it is not a prosecution based on an illegal naval investigation.

[1] Article 13 of the Criminal Code, Article 327 subparagraph 2 of the Criminal Procedure Act / [2] Articles 13 and 329 of the Criminal Code, Article 327 subparagraph 2 of the Criminal Procedure Act

[1] Supreme Court Decision 2005Do1247 decided Oct. 28, 2005 (Gong2005Ha, 1899)

Defendant

Defendant

Attorney Han-chul et al.

Seoul Central District Court Decision 2006No3136 Decided February 6, 2007

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

The grounds of appeal are examined.

1. As to the assertion against the rules of evidence

원심은 그 설시 증거들을 종합하여, 피고인이 범행 장소인 사당동 까치공원 옆 인도에 옆으로 누워 잠들어 있는 피해자를 발견하고 주변을 살피다가 경찰관들이 잠복근무 중이던 차량 옆까지 다가와 동정을 살핀 후, 피해자를 공원 옆 화단이 있는 으슥한 곳까지 약 10m 정도를 끌고 가, 위 차량 바로 앞(약 1m 정도 떨어진 곳)에서 멈추어 화단 옆에 있는 돌 위에 앉혀 놓고 피해자의 오른쪽 바지주머니에 손을 넣어 지갑을 꺼냈고, 그 직후 경찰관들이 곧바로 잠복 중이던 위 차량 안에서 뛰어나가 피고인을 체포한 사실을 인정한 다음, 피고인에 대한 이 사건 절도의 공소사실에 대하여 유죄를 선고한 제1심을 유지하였는바, 기록에 의하여 살펴보면, 원심의 위와 같은 인정은 사실심 법관의 합리적인 자유심증에 따른 것으로서 정당한 것으로 수긍이 가고, 거기에 상고이유로 주장하는 바와 같은 채증법칙 위배 등으로 판결 결과에 영향을 미친 위법이 있다고 볼 수 없다.

2. As to the assertion regarding the vessel investigation

Therefore, it cannot be denied that an investigation agency’s arrest of a criminal by means of tricks, schemes, etc. against a person who does not have the original criminal intent to commit a crime, thereby inducing the criminal intent, and an indictment based on such a naval investigation constitutes a case where the procedure is null and void in violation of the provisions of the Act. However, if the investigation agency merely provides a person who has the criminal intent with an opportunity to commit a crime, it cannot be readily concluded that it is an illegal naval investigation (see Supreme Court Decision 2005Do1247, Oct. 28, 2005, etc.).

According to the reasoning of the judgment of the court below, the above police officers, as a member of the subway Police Team, obtained the so-called subfacing method against the visitors who met in the vicinity of the subway station, and completed the subway stop service, and went to the Kachi Park, which is the place where the crime was committed, as well as after completing the subway stop service. There is a report stating that the victims who met the park next to the park, are taking care of the victim, "I think that the case is continuing at that place", and found the defendant (the age of 51) approaching the road, parking the vehicle at the corner of about 10 meters from the victim, and approaching the victim while the head was being accommodated, and later, the defendant arrested the defendant in the above crime, namely, he was arrested the defendant as a flagrant offender.

In accordance with the above facts, the above police officers who discovered the victim who lost his mind on the road should have taken adequate protective measures, such as requesting emergency relief from public health and medical institutions or public relief institutions, or protecting the police agencies, as stipulated in Article 4 of the Act on the Performance of Duties by Police Officers, as well as taking appropriate protective measures, but rather, taking advantage of such victim's condition to conduct criminal investigations, which is extremely inappropriate execution of duties.

Furthermore, the mission of the national police is to protect the lives, bodies, and property of the people and to prevent and suppress crimes (see Article 3 of the Police Act). It is not permissible to proceed to an investigation by intentionally neglecting any danger to the life and body of the people on the grounds of the necessity of criminal investigation, and even if it is necessary to cooperate with the people in the investigation, it is difficult to deem the lawful exercise of police authority by using so-called kis, at the risk of risk to the safety of the people's life and body without the consent of the people. In this case, the probability that potential criminals might immediately lead to a robbery, not mere larceny, depending on the victim's condition or resistance. Moreover, it cannot be ruled out that the discovery of a citizen who has lost the mind and on the street and did not take appropriate measures, and rather, it is difficult to proceed to the control and investigation of potential criminal acts, such as this case, as in this case, by taking advantage of such situation beyond the limit of criminal investigation.

However, the above reasons are only problematic in relation to the victim, and the above acts of the police officers were merely concealed in the victim's wife, and the defendant discovered the victim and brought about his own criminal intent to commit the crime of this case. Thus, in accordance with the above legal principles, apart from the responsibility of the police officers who participated in the wrong investigation method, the prosecution of this case against the defendant is not illegal.

Therefore, this part of the ground of appeal is rejected as it is without merit.

3. Conclusion

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

Justices Kim Hwang-sik (Presiding Justice)