[Defendant]
[Appellant] Defendant
[Defense Counsel] Samil Law Firm, Attorney Lee Chun-hui and 6 others
[Lower Court Judgment] Daegu High Court Judgment 2006No464, decided December 21, 2006
[Order]
The appeal is dismissed. 120 days of the detention period after the appeal shall be included in the principal sentence against the Defendant.
[Reasoning]
The grounds of appeal are examined.
1.
Joint principal offenders under Article 30 of the Criminal Act (형법) are established when the subjective and objective requirements of (i) the intent of joint commission and (ii) the execution of the crime through functional control over the act based on that joint intent are satisfied. Even in a case where some of the co-conspirators did not directly participate in carrying out part of the constituent elements of the offense, if it is recognized, in light of the person's status and role in the overall crime, and the degree of control or dominance over the course of the crime, etc., that the person is not merely a simple co-conspirator but that there exists functional control over the act through an essential contribution to the crime, such person cannot escape liability as a co-principal by conspiracy (이른바 공모공동정범)
(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, since the conspiracy or scheme in a co-principal-by-conspiracy case constitutes a material part of "the facts constituting the crime," it must be specified as concretely and in as much detail as possible 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 that are unavoidable due to the nature of the crime, it cannot be deemed unlawful merely because part of the facts charged is described somewhat comprehensively, so long as this does not go against 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.).
According to the evidence lawfully adopted by the court below, the following facts may be recognized: approximately 2,500 members of the (name omitted) Labor Union in the Pohang area, who had resolved to engage in industrial action, forcibly blocked all access to the Pohang Steel Works of POSCO Co., Ltd. for about two weeks under the leadership of union president Non-indicted Person, as a means of enhancing their bargaining power in collective negotiations; when this proved unsuccessful, they decided to resort to stronger measures and proceeded to break into and occupy the POSCO head office building for a little over a week; in the course of this, using the force of numbers, they committed crimes as found by the court below, including the confinement of numerous employees and others, extensive destruction of various facilities and items, and assault and infliction of injury upon police officers who entered the premises; and the Defendant, as a member of the vanguard unit that guarded the union president and led the rally at the forefront, actively participated in the industrial action at issue.
Examining the above recognized facts in light of the legal principles set forth above, even though the Defendant did not directly participate in carrying out some of the crimes committed by the members of the (name omitted) Labor Union, such as the confinement, destruction, assault, and infliction of injury found by the court below, considering the Defendant's status and role as shown in the above recognized facts, it is recognized that the Defendant was not merely a simple co-conspirator in each of the above crimes but a person in whom there existed functional control over the act through an essential contribution to the crimes. Therefore, the Defendant cannot escape liability as a co-principal by conspiracy for each of the crimes committed by the members of the (name omitted) Labor Union as found by the court below. Meanwhile, the fact that the description of some of the criminal facts, including the conspiracy, was made somewhat comprehensively appears to be unavoidable in light of the nature of this case as a collective crime committed over a period of about three weeks, and thus, even if the description is somewhat insufficient, it cannot be deemed unlawful.
The court below's determination recognizing the Defendant's liability as a co-principal by conspiracy for each of the crimes as found is justified in its conclusion, and there is no error of law, such as a misapprehension of the legal principles concerning the requirements for establishing joint principal offenders 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. This part of the grounds of appeal is not accepted.
2. Upon examination of the record, the measure of the court below in maintaining the first instance judgment, which found the Defendant guilty of obstruction of business and general traffic obstruction as found, by comprehensively considering the evidence it adopted, is justified, and there is no error of law, such as a misapprehension of facts due to a violation of the rules of evidence or a misapprehension of the legal principles concerning obstruction of business or general traffic obstruction, as alleged in the grounds of appeal. This part of the grounds of appeal is likewise not accepted.
3. In this case, where the Defendant was sentenced to imprisonment of less than 10 years, the grounds alleging that the sentencing was unjust do not constitute a legitimate ground of appeal. This part of the grounds of appeal is likewise not accepted.
4. Therefore, the appeal is dismissed, and it is ordered that a portion of the detention period after the appeal be included in the principal sentence. This judgment is rendered as stated in the Order, by the unanimous opinion of the Justices participating in the decision.
Presiding Justice Kim Yong-dam
Justice Park Si-hwan
Justice Park Il-hwan (Justice in charge)
Justice Kim Neung-hwan