2007Do1903 Larceny

by the Supreme Court of Korea

Justices Kim Hwang-sik (presiding Justice), Kim Young-ran, Lee Hong-hoon, Ahn Dae-hee (Justice in charge)

Main Issues

1. Whether merely providing opportunity to commit a crime constituted an illegal undercover operation, for the person who had already had a criminal intent but the introducing prosecution was illegal (negative)
2. The case holding that the execution itself is not illegal per se, when the policemen from the subway police looked out near the drunken victim at the park sidewalk in order to police smugglers who targets drunkard, the victim showed up and dragged on the victim about 10 meters and tried to snatch the wallet, the defendant was arrested on the spot

Summary of Decision

1. Originally, an undercover operation which provoke the criminal intent from the person who did not have criminal intent from the beginning by using evil trick and a scheme is in itself, illegal, and introducing prosecution following the undercover operation is void due to its violation to rule of law, however, just providing opportunity to commit crime for the person who already has criminal intent can not automatically interpreted as illegal undercover operation.
2. The case holding that the execution itself is not illegal per se, when the policemen from the subway police looked out near the drunken victim at the park sidewalk in order to police smugglers who targets drunkard, the victim showed up and dragged on the victim about 10 meters and tried to snatch the wallet, the defendant was arrested on the spot.

Reference Provisions

1. Article 13 of the Criminal Act / Article 312-2 of the Criminal Procedure Act
2. Article 13 of the Criminal Act / Article 327-2 of the Criminal Procedure Act

Article 13 of the Criminal Act (Criminal Intent)

Act performed through ignorance of the facts which comprise the constituent elements of a crime shall not be punishable, except as otherwise provided by Act.

Article 312-2 of the Criminal Procedure Act (Protocol Prepared by Public Prosecutor or Judicial Police Officer)

(2) A protocol containing interrogation of a suspect prepared by investigation authorities other than a public prosecutor may be used as evidence, only in case where the defendant who has been a suspect, or the defense counsel at a preparatory hearing or during public trial verifies the contents of the protocol.

Article 327 of the Criminal Procedure Act (Judgment Dismissing Public Prosecution)

Public prosecution shall be dismissed by judgment in the following cases:

2. Where the procedure for instituting public prosecution is void by reason of its having been contrary to the provisions of Acts;

Reference Cases

1. Supreme Court Decision 2005Do1247 delivered on October 28, 2005(Gong2005Ha, 1899)

• Plaintiff, Appellant: Jung Byung-oh,

• Counsel: Attorney Suh Hangi (public defender)

• Judgment of the Court Below: Seoul District Court Decision 2006No3136 delivered on February 6, 2007

Disposition

The appeal shall be dismissed. 10 days of detainment after the filing of the appeal shall be included in the main sentence.

Reasoning

The grounds of appeal are examined as follows,

The Court below considering the presented evidence sustained the Court of first instance, which found that; Defendant found the victim who were laying down sleeping at the sidewalk beside the Kachi-park, Sadang-Dong where is the place of commission of crime. The Defendant looked around the area, even to the vehicle where undercover policemen were in, then took the victim to the dark area into the small garden near the park which is about 10 meter, and stopped just in front of above vehicle (about 1 m away) and put him on a stone, put his hands into the right pocket of victim's pants to take the wallet out. Immediately after seeing this, policemen stormed out of the vehicle and arrested the Defendant.

The Court below rightly reasoned that original court approved facts following the reasonable free impression of fact-finding judge, therefore, it can not be found illegal affecting the result of the decision affected by being violated the evidence principle.

2. The claims as to the undercover Operation

Originally, an undercover operation which provoke the criminal intent from the person who did not have criminal intent from the beginning by using evil trick and a scheme is in itself, illegal, and introducing prosecution following the undercover operation is void due to its violation to rule of law, however, just providing opportunity to commit crime for the person who already has criminal intent can not automatically interpreted as illegal undercover operation. (Supreme Court Decision 2005Do1247 delivered on October 28, 2005)

Following the Court below, having heard the lead that there are many smuggling against drunkard near Sadang Station, above policemen who belongs to Subway Police Station, went to Kachi Park after the last duty at the subway station. They found the drunken victim laying down near the sidewalk and contemplated that because that spot is exactly the place where similar incidents occur, they decided to ambush and parked their car at the corner about 10 meter distance from the victim, and had their faced down to find this Defendant (age51) approach the victim and arrested the defendant when he conducted his crime.

Following the above approved fact, police officers who found the victim passed out on the ground, were supposed to render proper safety measures such as asking emergency relief from medical treatment organ or public relief organ, or reporting to police station, however, they went further to criminal investigation using the condition of the victim, which is absolutely improper performance of their duties.

Furthermore, national police whose duty shall include a protection of life, body, property of citizens and prevention, suppression, investigation of crime (Article 3 of police Act), are not allowed to go further into the investigation, intentionally leaving the health and safety of the victim in danger. In addition, it cannot be seen as the legal exercise of police power, using the victim as bait in spite of the danger of the health and safety of that person without the consent of the victim even under the circumstance where cooperation from the citizen is needed for criminal investigation.

In this case, we cannot preclude the probability of the latent criminal to go into burglary rather than mere larceny, moreover, not taking proper measures after finding the citizen passed out on the ground, taking advantage of policing and investigating is beyond the boundary of criminal investigation.

However, the reasons above, can only be problematic concerning the relation with the victim, above conduct of the policemen merely watched out near the victim, and the Defendant found the victim and had criminal intent, went further to commit this crime. Regardless of the responsibility of the policemen who were involved in improper investigative measures, the prosecution to the defendant who makes his mind to commit crime and went further to execution is not illegal per se.

Therefore, the ground of appeal as to this issue is without merit.

3. Conclusion

Therefore, we dismiss the appeal, and the days of detainment after the filing of the appeal shall be included in the main sentence. It is so decided as per Disposition by the assent of justices who reviewed the appeal.

Source

• Supreme Court Decision 2007Do1903 Delivered on May 31, 2007, Supreme Court Library of Korea