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(영문) 대법원 2017.11.14.선고 2017도10655 판결

가.유사수신행위의규제에관한법률위반·나.자본시장과금융투자업에관한법률위반

Cases

2017Do106555 A. Violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission

(b) Violation of the Financial Investment Services and Capital Markets Act;

Defendant

1. A;

2. C

Appellant

Defendants

Defense Counsel

Law Firm AI (private ships for Defendant A)

AJ, AK, AM

Law Firm (LLC) BO (private ships for Defendant A)

Attorney BP

Attorney B Q (Korean War for Defendant C)

Judgment of the lower court

Seoul High Court Decision 2016No2317 Decided June 21, 2017

Imposition of Judgment

November 14, 2017

Text

All appeals are dismissed.

Reasons

The grounds of appeal are examined.

1. Defendant A

The allegation in the grounds of appeal that the lower court erred by misapprehending the legal doctrine on the blanket crime, or by misapprehending the legal doctrine on the violation of the Financial Investment Services and Capital Markets Act, is not a legitimate ground of appeal, since the Defendant’s ground of appeal or the lower court did not consider it as being subject to ex officio.

According to Article 383 subparag. 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for more than ten years has been imposed, an appeal may be filed on the ground of unfair sentencing. Therefore, in this case where a more minor sentence has been imposed on the defendant, the argument that the sentence is too

2. Defendant C

A. Where multiple acts falling under the name of the same crime continue for a certain period of time as a single and continuous criminal intent, and the legal benefits from such damage are the same, all of them shall be punished by a single comprehensive crime (see, e.g., Supreme Court Decisions 2006Do6620, Jan. 11, 2007; 2007Do595, Mar. 29, 2007). However, in cases where the singleness and continuity of a crime are not recognized or the method of committing a crime is not the same, these crimes constitute substantive concurrent crimes (see, e.g., Supreme Court Decision 2007Do8645, Nov. 11, 2010).

B. For the following reasons, the lower court determined that the instant crime was not related to the solicitation of investment funds through P Co., Ltd. (hereinafter “P”) for which the judgment became final and conclusive (hereinafter “P”). (1) Defendant C conspired with Defendant A to engage in the act of fund-raising in collusion with Defendant C during the process of operating P from March 11, 2015 to April 21, 2015, and was sentenced to seven years of imprisonment in Seoul High Court 2016 - 961 on September 22, 2016, and the final judgment became final and conclusive on January 25, 2017.

(2) From the time of running H Co., Ltd. (hereinafter “H”), Defendant A established P with a plan to operate an investment advisory business and discretionary investment business from the time of operating the H Co., Ltd. (hereinafter “H”). In the situation where the so-called “non-system financial company” is unable to attract large-scale investments, H may be deemed to have resolved to commit a new crime to newly establish a “system financial company” and expand the scale of investment attraction. In practice, H and P not only were registered directors, the location of the principal office, etc. are operated as different corporations, but also there were considerable differences in the amount of funds operation, the method of guaranteeing principal, the scope of victims, and the amount of damages. Accordingly, the Defendants should be deemed to have established a new organization to expand the scale of the fund-raising business without authorization and engage in a separate fund-raising business.

C. Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, the lower court’s determination is justifiable. In so determining, the lower court did not err by misapprehending the legal doctrine on the blanket crime, contrary to what

3. Conclusion

The Defendants’ final appeal is dismissed in entirety as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae-young

Justices Kim Chang-suk

Justices Park Young-young

Justices Lee Dong-won

Justices Kim Jae-hyung