[1] In a case where the defendant denies his intention of joint processing as a co-principal, the method of proof

[2] In a case where Gap et al. and Eul operators of a game place Gap and merchandise coupon exchange office Eul conspired to provide merchandise coupons as free gifts while operating the game place, and Eul exchanged merchandise coupons acquired by customers Eul and caused customers to perform speculative acts using game products, the case holding that Gap and Eul are liable to commit a crime of violation of the Game Industry Promotion Act

[1] Articles 13 and 30 of the Criminal Code, Article 307 of the Criminal Procedure Act / [2] Article 30 of the Criminal Code, Article 44 (1) 1 of the Game Industry Promotion Act

[1] Supreme Court Decision 99Do4923 delivered on March 14, 2000 (Gong2000Sang, 101) Supreme Court Decision 2002Do6103 Delivered on January 24, 2003 (Gong2003Sang, 758) Supreme Court Decision 2003Do3516 Delivered on October 10, 2003 (Gong2001Do606 Delivered on December 12, 2003)

Defendant 1 and one other

Prosecutor

Attorney Yoon Byung-gu

Daejeon District Court Decision 2007No666 Decided July 13, 2007

The judgment of the court below is reversed, and the case is remanded to Daejeon District Court Panel Division.

The grounds of appeal are examined.

Article 30 of the Criminal Act provides that two or more co-principals jointly commit a crime. In order to establish a co-principal, it is necessary that the crime is committed through functional control by the co-principal, which is subjective requirements, by the co-principal's intent of co-processing and objective requirements. The intent of co-processing is to move one another's own intent by using another's act (see Supreme Court Decision 2001Do4792, Nov. 9, 2001, etc.). Such intent of co-processing is insufficient only to recognize another person's crime but not to restrain it (see, e.g., Supreme Court Decision 2000Do576, Apr. 7, 200), and it is sufficient that each co-offender should not be subject to prior conspiracy of the crime plan, and if the co-principal's act constitutes the elements of a crime or the act related in essence to the elements of a crime is shared with each other.

In addition, there is no strict proof for recognizing the intention of joint processing. However, in a case where the defendant denies the intention of joint processing, which is a subjective element, it is inevitable to prove the fact by means of indirect or circumstantial evidence having considerable relevance to the criminal's intent due to the nature of the object, and what constitutes indirect facts having considerable relevance with the criminal's intent should be determined by the method of reasonably determining the link of the fact by means of close observation or analysis based on normal empirical rule (see Supreme Court Decision 2002Do6103, Jan. 24, 2003, etc.).

According to the reasoning of the judgment below, Defendant 1 conspired to offer gift certificates to the other party in the operation of the game of this case, and Defendant 2 had customers engage in speculative acts using game products by exchanging gift certificates received from the game of this case while operating the game of this case. According to the evidence duly adopted and examined by the court of first instance, Defendant 1, who borrowed KRW 30 million from Nonindicted 1 for the purpose of opening the game of this case and operated the money exchange center in the nearest area of the game of this case, it is difficult to recognize that the Defendants were not guilty of the above acts of selling gift certificates to the outside area of the game of this case. However, according to the circumstance that Defendant 1 knew that the above acts of selling gift certificates to the outside area of the game of this case were not carried out by the above acts of selling gift certificates to the outside area of the game of this case, it was hard to find that Defendant 2 knew of the above acts of selling gift certificates to the outside area of the game of this case or that Defendant 1 and its employees were operating the money exchange facility of this case.

However, the above determination by the court below is difficult to accept for the following reasons as seen earlier and the aforementioned legal principles.

Upon examination of the evidence adopted by the court below, Defendant 1 stated in the first instance court that "I will not have any guest who had been engaged in entertainment games, and will have been exchanged for the purpose of purchasing goods with merchandise coupons", that there is no other game places or exchange centers of the same kind near the game site and exchange stations, and that the location of the exchange center is a place where it is difficult to find the same within 40 meters from the game site of this case without any guidance, and that there is no possibility for Nonindicted Party 1 to introduce a money exchange center from Defendant 1 and again request for the issuance of money exchange services to Defendant 2, which constitutes the crime of selling merchandise coupons, and that Defendant 2 would not have been aware of the fact that Defendant 1 would have been carried out by Nonindicted Party 2's invitation, which constitutes the crime of selling merchandise coupons of this case, and that Defendant 2 would have been aware of the fact that Defendant 1 would have been carried out by Nonindicted Party 1's money exchange tickets of this case from 00 to 200.

In the end, the judgment of the court below which acquitted the defendants on the above grounds is erroneous in the misapprehension of legal principles as to co-principal, which affected the conclusion of the judgment, and the ground of appeal pointing this out

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)