[Defendant]
[Appellant] Defendants
[Defense Counsel] Samil Law Firm, Attorney Song Hae-ik in charge
[Court Below] Daegu High Court Decision 2006No463, decided December 21, 2006
[Order]
All appeals are dismissed. 106 days each of the detention period after the appeal shall be included in the principal sentence against each of the Defendants.
[Reasoning]
The grounds of appeal are examined.
1. According to the reasoning of the judgment below and the evidence lawfully adopted by the court of first instance as cited by the court below, it can be sufficiently recognized that the members of the (name omitted) Labor Union of the Pohang region, who had resolved to engage in industrial action, in order to achieve the objectives intended in collective bargaining as stated in the judgment below, under the leadership of Defendant 1, the union president, and executive officers, illegally controlled access to the Pohang Steelworks of POSCO Co., Ltd. (hereinafter "POSCO") for approximately two weeks, thereby obstructing POSCO's business of controlling entrants, and on two occasions occupied the entire roadway or an entire lane in one direction while marching, thereby obstructing traffic; and that when these methods alone proved insufficient to achieve their objective, they decided to resort to stronger measures and broke into and occupied the POSCO head office building for a little over a week, during which, by exploiting the power of numbers, they committed crimes such as confinement of numerous employees and others and extensive destruction of various facilities and property. In light of the circumstances and process of the above general traffic obstruction offenses, and the position and degree of involvement of the Defendants who participated therein at the time, the intent or at least conditional intent of the relevant Defendants with respect to the above offenses can also be sufficiently recognized. Therefore, the judgment below to that effect is justified, and there is no illegality therein due to incomplete deliberation, violation of the rules of evidence, or misapprehension of the legal principles concerning the establishment of the crimes of confinement and general traffic obstruction.
2.
Joint principal offense under Article 30 of the Criminal Act (형법) is established upon fulfillment of the subjective and objective requirements of intent to jointly participate and the commission of a crime through functional control of the act based on that joint intent. Even where some of the conspirators did not directly share in and carry out part of the constituent elements of the offense, if, taking into account the position and role occupied by that person in the overall crime, and his or her control or dominance over the course of the crime, it is recognized that there exists functional control of the act through an essential contribution to the crime, rather than that person being a mere conspirator, that person cannot escape liability as a so-called co-principal by conspiracy (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.). Furthermore, in such a case, in light of all the circumstances, including the means and manner of the crime, the number and disposition of the participants, the characteristics of the time and place of the offense, and the possibility of contact with others during the course of the crime and the responses that could be expected therefrom, if the conspirators could have anticipated, or could have sufficiently anticipated, that other incidental crimes would arise in the course of carrying out the conspired offense or advancing toward the intended objective, but nevertheless disregarded such possibility and proceeded with the conspired offense without taking reasonable measures sufficient to prevent it, and the anticipated crimes in fact occurred as expected, then even if there was no individual communication of intent regarding each and every one of the derivative offenses, it must be deemed that an implicit conspiracy as well as functional control of the act exists among the original conspirators with respect to all such offenses. Meanwhile, since conspiracy or collusion in a co-principal by conspiracy constitutes a material part of the "facts constituting the crime," it must, so far as possible, be specified concretely and in detail and is subject to strict proof (see Supreme Court Decision 88Do1114, decided September 13, 1988; Supreme Court Decision 88Do2381, decided June 27, 1989, etc.); however, in exceptional cases unavoidable due to the nature of the crime, it cannot be deemed unlawful merely because part of the facts charged is stated somewhat comprehensively, so long as this does not contravene the purpose of the Criminal Procedure Act (형사소송법) in requiring the facts charged to be specified (see Supreme Court Decision 2002Do6103, decided January 24, 2003). Accordingly, in stating the conspiracy or collusion, it is not necessary to state in detail the specific date, time, place, and content of the collusion; it suffices if it is shown that a meeting of minds was formed (see Supreme Court Decision 2006Do3631, decided August 25, 2006).
Applying the above legal principles, and in light of the following circumstances recognized from the reasoning of the judgment below and the evidence lawfully adopted by the court of first instance as cited by the court below—namely, that approximately 2,500 members of the (name omitted) Labor Union, which had resolved to engage in industrial action, in order to achieve the objectives sought in collective bargaining, under the leadership of the Defendants, who were the union president or executive officers, carried out the access control at POSCO and the occupation of the POSCO head office building as stated in the judgment below; that in the course thereof, union members, exploiting the power of numbers, committed crimes such as confinement, destruction of facilities, and assault and infliction of injury upon police officers entering the premises, as stated in the judgment below; that the Defendants, as executive officers of the (name omitted) Labor Union, decided upon the above collective actions such as access control and occupation of the POSCO head office building, instructed union members accordingly, and directed and controlled the implementation of such instructions through a systematically organized chain of command; that, considering the scale of the participants and the heated atmosphere at the time, the Defendants could have sufficiently anticipated that disputes would arise between union members and entrants who refused to comply with the inspection and search, that union members would display violent behavior in the course of the collective occupation and sit-in, and that there would be physical clashes with police attempting to suppress the action, followed by collective assault, infliction of injury, and destruction of property; and that, notwithstanding this, without taking reasonable and appropriate measures sufficient to prevent such occurrences, the Defendants rather encouraged and carried out the above collective actions—and considering, in addition, the nature and circumstances of the above collective actions, their scale and form, the specific methods and course of progress, the position and role of the Defendants in that process, and their control or dominance over the course of the crime through the chain of command within the organized body of the labor union engaged in industrial action, it must be recognized that the Defendants, even if they did not specifically conspire regarding, or directly share in and carry out, some of the crimes such as confinement, destruction of property, assault, and infliction of injury committed by the members of the (name omitted) Labor Union as stated in the judgment below, are persons in whom there exists not only an implicit conspiracy with respect to each of the above offenses but also functional control of the act through an essential contribution to those offenses. Therefore, the Defendants cannot escape liability as co-principals by conspiracy with respect to each of the above offenses committed by the members of the (name omitted) Labor Union. Meanwhile, the fact that the description of some of the facts of the crime, such as the date, place, and process of the conspiracy, is somewhat comprehensive appears unavoidable in light of the nature of this case, which involved collective crimes committed over a period of a little over a week, and thus such description, even if somewhat insufficient, cannot be deemed unlawful.
Therefore, the judgment below to that effect is justified, and there is no illegality therein due to incomplete deliberation, violation of the rules of evidence, or misapprehension of the legal principles concerning the establishment of a co-principal by conspiracy and the specification of the facts charged.
3. In this case, where the Defendants were sentenced to imprisonment of less than 10 years, the ground that the sentencing is unjust does not constitute a legitimate ground of appeal.
4. Therefore, all of the Defendants' appeals are dismissed, and part of the detention period of each Defendant after the appeal shall be included in the principal sentence against each Defendant. This judgment is rendered as stated in the Order by the unanimous opinion of the participating Justices.
Justice Jeon Su-an (Presiding Justice), Ko Hyeon-cheol, Yang Seung-tae (Justice in Charge), Kim Ji-hyeong