[Defendant]
[Appellant] Defendant
[Defense Counsel] Samil Law Firm and 1 other
[Judgment Below] Daegu High Court Decision 2006No462, decided December 21, 2006
[Order]
The judgment below is reversed, and the case is remanded to the Daegu High Court.
[Reasoning]
The grounds of appeal (including the supplementary grounds of appeal submitted after the expiration of the period for submitting the grounds of appeal, to the extent that they supplement the grounds of appeal) are examined as follows.
1.
Co-principal offense under Article 30 of the Criminal Act (형법) is established by satisfying the subjective and objective requirements of an intent to jointly commit the offense and the commission of the crime through functional control over the act based on that joint intent. Even a person among the co-conspirators who did not directly participate in carrying out part of the constituent elements of the offense may, depending on the circumstances, bear criminal liability as a so-called co-conspirator co-principal (공모공동정범). However, in order to do so, it must be recognized, considering comprehensively the person's status and role in the overall crime, and the degree of control or dominance over the course of the crime, that the person is not merely a co-conspirator but that functional control over the act exists through an essential contribution to the crime (see Supreme Court en banc Decision 98Do321, decided May 21, 1998; Supreme Court Decision 2002Do995, decided June 24, 2004; Supreme Court Decision 2002Do5112, decided March 11, 2005; Supreme Court Decision 2006Do1623, decided December 22, 2006, etc.).
Meanwhile, if it is an unavoidable exceptional case in light of the nature of the crime, it cannot necessarily be held unlawful merely because part of the facts charged is described somewhat comprehensively, so long as this does not contravene the purpose of the Criminal Procedure Act (형사소송법) requiring the facts charged to be specified (see Supreme Court Decision 2002Do6103, decided January 24, 2003, etc.). However, in the case of a co-conspirator co-principal, since the conspiracy or plotting constitutes a major part of the "facts constituting the crime," it must be specified as concretely and in as much detail as possible, and moreover, it is subject to strict proof (see Supreme Court Decision 88Do1114, decided September 13, 1988; Supreme Court Decision 88Do2381, decided June 27, 1989, etc.).
2. The court below, for the reasons stated in its judgment, recognized the Defendant's criminal liability as a co-conspirator co-principal for all of the offenses set forth in the judgment, which were committed in the course of the occupation of the head office building of POSCO Co., Ltd. by approximately 2,500 members of the (name omitted) Union in the Pohang area, led by Union President Non-Indicted 1, from around 14:15 on July 13, 2006 to around 04:00 on July 21, 2006.
A. First, according to the evidence lawfully adopted by the court below, the following facts can be recognized: the executive body of the (name omitted) Union finally decided, around the afternoon of July 14, 2006, to occupy the POSCO head office building for a considerable period; accordingly, around 02:00 on July 15, approximately 2,000 union members entered the head office building; approximately 7 to 8 members of the executive body of the (name omitted) Union, including Union President Non-Indicted 1, who directly directed this occupation, stayed on the 9th floor of the building during the period of occupation and directed and controlled the union members' occupation activities by controlling their conduct and preventing their departure through the union's chain of command; and the Defendant, as the Head of the Gyeongbuk Regional Headquarters of the Korean Confederation of Trade Unions (전국민주노동조합총연맹), which is the higher-level organization of the (name omitted) Union, entered the head office building together with the aforementioned union members around 02:00 on July 15, and stayed on the 9th floor with the executive body of the (name omitted) Union, discussing the manner of struggle through meetings, touring each floor together to encourage the union members, and otherwise acting in concert with the executive body, mainly playing the role of informing Union President Non-Indicted 1 of external circumstances such as those of the Korean Confederation of Trade Unions, and promoting negotiations through the negotiation channel. In light of the legal principles set forth above, examining the above recognized facts, it can be recognized that, with respect to each offense set forth in the judgment below—such as trespass on a building, obstruction of business, destruction of property, assault, and bodily injury—that occurred around the time the Defendant entered the POSCO building together with the (name omitted) Union members around 02:00 on July 15 and thereafter, even though the Defendant did not personally participate in carrying out some of these acts, considering comprehensively the Defendant's status and role as shown in the above recognized facts, as well as the Defendant's control or dominance over the course of the crime through the chain of command of the organized group that is a labor union engaged in industrial action, the Defendant is not merely a simple co-conspirator with respect to each of the above offenses, but is a person in whom functional control over the act exists through an essential contribution to the crime. Therefore, the Defendant cannot avoid criminal liability as a co-conspirator co-principal for each of the offenses committed by the members of the (name omitted) Union in this portion. The fact that part of the description of the criminal facts, including the conspiracy, is somewhat comprehensively stated appears to be unavoidable in light of the characteristics of this case, namely, a collective crime committed over a period of approximately 6 days; therefore, even if the description is somewhat insufficient, it cannot be said to be unlawful.
With respect to this portion, the court below's conclusion recognizing the Defendant's criminal liability as a co-conspirator co-principal for each of the offenses set forth in the judgment is justified, and there is no illegality affecting the judgment, such as a misapprehension of the legal principles concerning the requirements for establishing co-principal offense under Article 30 of the Criminal Act or the specification of the facts charged, or a violation of the rules of evidence, as pointed out in the grounds of appeal.
B. However, the part of the judgment below that recognized the Defendant's criminal liability as a co-conspirator co-principal even with respect to the offenses committed by the members of the (name omitted) Union prior to around 02:00 on July 15 is difficult to accept for the following reasons.
According to the evidence lawfully adopted by the court below, the Defendant arrived at the head office building around 22:00 on July 13, after approximately 500 union members, led by Union President Non-Indicted 1 of the (name omitted) Union, had trespassed into the POSCO head office building around 14:15 on July 13; the Defendant returned home around 02:00 on July 14, but came out again to the front of the head office building around 09:00, and stayed together with the executive body of the (name omitted) Union until around 02:00 on July 15, when, as noted above, he entered the head office building together with approximately 2,000 union members. During this period, it is recognized that, as an officer of the higher-level organization, the Defendant listened to explanations from Non-Indicted 1 and other members of the executive body of the (name omitted) Union regarding the circumstances of the occupation of the head office building, listened to and discussed future negotiation or struggle plans, and otherwise took a stance of supporting the struggle of the (name omitted) Union members. However, it is difficult to find any evidence sufficient to recognize that the Defendant had, in advance, conspired with Union President Non-Indicted 1 and other members of the executive body of the (name omitted) Union to trespass into the POSCO head office building, or that the Defendant concurred in the final decision of the executive body of the (name omitted) Union to occupy the head office building for a considerable period, or further, that the Defendant exerted influence, such as by controlling or dominating the course of the crime through the executive body of the (name omitted) Union, even with respect to the acts of the (name omitted) Union members that occurred before the joint entry into the head office building around 02:00 on July 15.
Given this, with respect to the offenses committed by the members of the (name omitted) Union prior to around 02:00 on July 15—namely, the confinement of Woori Bank and POSCO employees committed from around 14:15 to around 23:30 on July 13, and the trespass into the POSCO head office building by approximately 500 members of the (name omitted) Union prior to around 02:00 on July 15, and the obstruction of business and destruction of property resulting therefrom—it is difficult to find that functional control over the act through an essential contribution to each offense exists on the part of the Defendant, and therefore, criminal liability as a co-conspirator co-principal cannot be recognized with respect to this portion.
The court below, which nevertheless recognized the Defendant's criminal liability as a co-conspirator co-principal even with respect to this portion of the facts charged, committed an error of misapprehending the legal principles concerning the requirements for establishing co-principal offense under Article 30 of the Criminal Act, and therefore, the judgment below cannot be sustained as it is.
3. Therefore, without the need to examine the remaining grounds of appeal, the judgment below cannot avoid being reversed. Since the court below rendered a single sentence for all of the criminal facts set forth in its judgment, the judgment below is reversed in its entirety, and the case is remanded to the court below for further examination and adjudication. This judgment is rendered by the unanimous opinion of the participating Justices, as set forth in the Order.
Justice Yang Sung-tae (Presiding Justice), Justice Ko Hyun-cheol, Justice Kim Ji-hyung, Justice Jeon Su-an (Reporting Justice)