[2] The elements required for the act of receiving money through a multi-level marketing organization, etc. under Article 3 of the Act on the Regulation of Conducting Fund-Raising Business without Permission

1. As to the violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission

Article 3 of the Act on the Regulation of Conducting Fund-Raising Business without Permission (hereinafter "the Act on the Regulation of Fund-Raising Business without Permission") provides that "the act of importing money by promising to pay an amount in whole or in excess of the amount of money invested to the future" as one of the acts of fund-raising business without permission or authorization under related Acts and subordinate statutes. The legislative intent of regulating fund-raising business without permission or authorization is to protect good traders and to establish a sound financial order by regulating fund-raising business under the name of investments, deposits, etc. from many and unspecified persons. Thus, in light of the legislative intent or the meaning of the term "contribution" under the same Act, it is difficult to regard the revenue of fund-raising business, which is substantially mediated, as the revenue of fund-raising business, is likely to be regarded as the revenue of fund-raising business, and thus, if it can be seen as having actually received money without the transaction of goods, it can be regarded as an act of fund-raising business without permission or authorization (see Supreme Court Decision 2003Do2164, Nov. 24, 2005).

Examining the reasoning of the judgment below in light of these legal principles, the defendants, as the representative director and the general director of the non-indicted 1 corporation, made an investment of KRW 600,000,000 in order to attract the money of many unspecified salespersons, shall be paid an allowance of KRW 200,000 when making an investment of KRW 6 million, and KRW 8,000,000 shall be paid an allowance of KRW 60,000 if making an investment of KRW 60,000,000,000,000, in the event of making an investment of KRW 17,000,000,000 as an allowance, and received the money as stated in the judgment of the court of first instance from those who are not interested in the purchase of goods and have interest in paying an allowance, and there is no violation of the rules of evidence that the defendants' act of raising funds constitutes an act of fund under Article 2 subparagraph 1 of the Act on the Regulation of Unauthorized Collection of Goods.

Meanwhile, Article 23(2) of the Door-to-Door Sales Act (hereinafter “Door Sales Act”) provides that “any person shall not engage in any monetary transaction without any transaction of goods, etc. or make any actual monetary transaction by pretending any transaction of goods, etc. through any multi-level marketing organization or any similar multi-level marketing organization.” Article 3 of the Act on the Regulation on Door-to-Door Sales, Etc. provides that “any person shall not allow any person to make an investment in the future with the intention to raise funds from many and unspecified persons without obtaining authorization or permission, making a registration, or making a report pursuant to other Acts and subordinate statutes and shall not make an investment in the future, and shall not import any money transaction using any multi-level marketing organization, etc. with the intention to make an agreement to pay the full amount of investment or any excess thereof in the future, but it constitutes a violation of Article 3 of the Act on the Regulation on Door-to-Door Sales, Etc. (see Supreme Court Decision 201Do1710, Jul. 13, 2001).

2. As to fraud

Examining the reasoning of the judgment below in light of the records, it is proper that the court below acknowledged the facts as stated in the judgment after compiling the adopted evidence, and found the defendant 2 guilty of the crime that had been obtained money from the victims as investment money in collusion with the employees of the non-indicted 1 corporation, the superior business operators and the non-indicted 1 corporation 2 in order to make it impossible in principle to pay high-rate allowances to the salespersons in collusion with the non-indicted 1 corporation's employees and the defendant 2, but he constantly received high-rate allowances from the victims as investment money. The defendant 1 also recognized the defendant 1 as the representative director of the non-indicted 1 corporation with the knowledge that he would be able to pay high-rate allowances in collusion with the defendant 2 by participating in the decision-making of the non-indicted 1 corporation, the inducement of high-amount investors, etc., and there is no violation of the rules of evidence or deliberation, or any misapprehension of the legal principles on the criminal intent of defraudation and joint principal of crimes.

3. Conclusion

Therefore, all appeals are dismissed, and some of the detention days after the appeal shall be included in the original sentence against the Defendants. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)