[1] In a case where the principal does not consent to the crime, or where it is difficult to see that the principal's resolution was caused by the principal's act of aiding and abetting the principal, the principal's liability for the crime

[2] The standard for determining whether the crime was caused by the act of aiding and abetting the principal in a case where the principal began to commit the crime, and whether the principal is established in a case where the principal did not consent to the crime at the time of the act of aiding and abetting the principal in a case where it is recognized that the crime was resolved by the act of aiding and abetting (affirmative)

[3] The case affirming the judgment below which acknowledged the crime of abortion by the defendant on the ground that the defendant adopted and implemented a resolution for abortion by the defendant's act of abortion, in case where the defendant knew that the defendant was pregnant of the female Gap who was a teaching agent on the premise of marriage and was refused by soliciting abortion several times, but thereafter Gap did not notify the defendant and received abortion

[1] The crime of aiding and abetting another person who is a principal offender to commit a crime is established when the principal offender passed a resolution to commit the crime. Thus, in a case where the principal offender does not consent to the crime, or where it is difficult to deem that the principal principal's crime was caused by the principal's act of aiding and abetting and abetting, the principal offender can only be punished by conspiracy or preparation pursuant to Article 31 (3) of the Criminal Act as a failed teacher.

[2] In a case where the principal initiates the commission of the crime, whether the resolution was caused by the principal’s act of aiding and abetting shall be determined by the method of objectively determining the whole progress of the case by comprehensively taking into account all the circumstances such as the relationship between the principal and the principal, the content and degree of the principal’s act, the process leading the principal to the crime, the existence of other causes for the principal to prevent the principal from committing the crime, even though the principal did not consent to the crime at the time of the principal’s act of aiding and abetting, as long as it is recognized that the principal resolved to commit the crime by the principal’s act of aiding and abetting, it does not affect the establishment of the principal of the crime.

[3] The case affirming the judgment below that recognized the crime of abortion by the defendant on the ground that, in a case where the defendant knew of the pregnancy of the woman Gap who attended a school on the premise of marriage and notified the defendant that he would not have any intention to exercise parental authority over the woman Gap but will no longer proceed to marriage, and he did not notify the defendant that he would not have any intention to exercise parental authority over the child even thereafter, and where he received abortion treatment at the hospital where he was located at the hospital where he was located without notifying the defendant, it is reasonable to view that the defendant has instigated abortion continuously even after he notified the defendant of whether he would have given birth as well as at the time when he directly solicits the abortion and notified him of whether he would have given birth, and that there was a resolution and implementation of abortion by the defendant, and that there was no difference between the defendant's act of abortion and the resolution of abortion by the defendant on the ground that the defendant's act of abortion did not cut.

[1] Article 31(1) and (3) of the Criminal Act / [2] Article 31(1) of the Criminal Act / [3] Articles 17, 31(1), and 269(1) of the Criminal Act

Defendant

Defendant

Law Firm Gisung, Attorneys Kim Sung-soo et al.

Seoul Southern District Court Decision 2011No1216 decided February 9, 2012

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 4

A. The crime of aiding and abetting a person who is a principal offender to commit a crime is established when the principal offender passed a resolution to commit the crime. Thus, in a case where the principal offender does not consent to the crime, or where it is difficult to deem that the principal principal’s crime was caused by the principal’s act of aiding and abetting and abetting the principal offender to be punished by conspiracy or preparation in accordance with Article 31(3) of the Criminal Act, the principal offender can be punished as a failed teacher.

On the other hand, in the case where the principal's crime was commenced, whether the resolution was derived from the principal's act of aiding and abetting shall be determined by the method of objectively determining the whole progress of the case, comprehensively taking into account all the circumstances such as the relationship between the principal and the principal, the content and degree of the principal's act, the process leading the principal to the crime, the existence of the principal's act of aiding and abetting and the existence of other causes, even though the principal did not commit the crime, and even if the principal appears to have not consented to the crime at the time of the principal's act of aiding and abetting, it shall not affect the establishment of the principal as long as it is recognized that the principal resolved to commit the crime by the

B. The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following: (a) the Nonindicted Party, who was a doctor on the premise of marriage, knew of the fact that he was pregnant; (b) recommended abortion several times as indicated in the facts charged, including the Nonindicted Party’s completion of a medical course; (c) the Nonindicted Party told the Defendant that his childbirth or marriage would not interfere with the Defendant’s future; (d) the Defendant is aware of whether he was given birth or marriage to the Nonindicted Party; and (e) the Defendant notified the Nonindicted Party that he would no longer proceed to marriage; (e) the Defendant did not intend to exercise parental authority over a child; and (e) even after that, the Defendant did not want to engage in abortion, the Nonindicted Party was aware of the intention of the Defendant; and (e) did not notify the Defendant that the Nonindicted Party was firmly established; and (e) took abortion procedures at the principal hospital by identifying the Defendant.

C. Examining these facts in light of the legal principles as seen earlier, it is reasonable to view that the Defendant continued to induce the Nonindicted Party to abortion even after the Nonindicted Party informed him of whether he was given birth, as well as at the time of directly soliciting the abortion, and that the Nonindicted Party passed a resolution and implemented the abortion. Even if the Nonindicted Party stated that the initial son would have caused the abortion, such circumstance alone does not necessarily lead to the decline between the Defendant’s act of aiding and abetting the abortion and the resolution of the Nonindicted Party’s abortion.

The judgment below to the same purport is just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles concerning the requirements for establishment

2. As to the grounds of appeal Nos. 2 and 3

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, the lower court is justifiable to have determined that the death of a fetus at the time of the abortion procedure in this case was inevitably deemed to have been conducted for the health of the pregnant woman because it was imminent. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules,

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)