[특정경제범죄가중처벌등에관한법률위반(사기)·사기·의료법위반·소비자생활협동조합법위반·근로기준법위반·근로자퇴직급여보장법위반][공2017상,1063]
The meaning of “when a registration is made by false or unlawful means” as provided by Article 85(2)3 of the former Consumer Cooperatives Act, and whether the case where a registration of incorporation is made by an application for registration of incorporation by pretending that a legitimate establishment was obtained by false or other unlawful means, and then an application for registration of incorporation is included therein (affirmative)
Article 85(2)3 of the former Consumer Cooperatives Act (amended by Act No. 12833, Oct. 15, 2014) provides that an executive officer, employee, or liquidator of a consumer cooperative (hereinafter referred to as “cooperative”) shall be punished by “when a registration is made by false or unlawful means”. Here, “when a registration is made by false or other unlawful means” refers to cases where a registration is completed by a deceptive scheme or other act deemed unfair under the generally accepted social norms even though it is impossible to complete the registration of the cooperative in accordance with the normal procedure, and includes cases where a registration of establishment is completed by pretending to obtain authorization of establishment by fraudulent or other unlawful means as if a legitimate authorization of establishment was duly filed.
Article 85 (2) 3 of the former Consumer Cooperatives Act (Amended by Act No. 12833, Oct. 15, 2014)
Defendant
Defendant
Law Firm Taedam, Attorneys Kim Young-moo et al.
Seoul High Court Decision 2016No1691, 3125 decided November 17, 2016
The appeal is dismissed.
The grounds of appeal are examined.
1. Regarding ground of appeal No. 1
A. Article 85(2)3 (hereinafter “instant penal provision”) of the former Consumer Cooperatives Act (amended by Act No. 12833, Oct. 15, 2014; hereinafter “the Act”) provides that an officer, employee, or liquidator of a consumer cooperative (hereinafter “cooperative”) shall be punished as “when a registration is made by a false or unlawful means.” Here, “when a registration is made by a false or unlawful means” refers to cases where a cooperative’s registration cannot be completed by means of a deceptive scheme or other acts recognized as unfair by social norms, even though it is impossible to complete its registration by means of a normal procedure. This includes cases where a legitimate application for registration of establishment is filed by pretending that a legitimate authorization for establishment was obtained by a false or other unlawful means, and then a registration of establishment is filed by a false or other unlawful means.
B. Based on the same purport, the lower court acknowledged the following circumstances, and found the Defendant guilty of violating the Consumer Cooperatives Act, among the charges of this case, on the ground that: (a) although the Defendant did not actually receive an investment of KRW 9 million from the Nonindicted Party, etc. at the time of the establishment authorization of the instant association; (b) the Defendant, as if the Nonindicted Party, etc. invested, falsely prepared an application for establishment authorization of the instant association, along with a false investment certificate; and (c) submitted the application for establishment authorization; and (d) made the establishment registration of the instant association by filing an application for establishment authorization pursuant to the establishment authorization issued by false means; and
Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted by the lower court, the lower court’s aforementioned determination is justifiable. In so determining, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on “where registration was made by false or unlawful means” which goes beyond the bounds of the principle of free evaluation of evidence in
2. As to the grounds of appeal Nos. 2 and 3
Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, it is justifiable for the lower court to have found the Defendant guilty of both the violation of the Medical Service Act, fraud, and violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) among the facts charged in the instant case on the grounds stated in its reasoning. In so doing, it did not err by misapprehending the legal doctrine on the violation of the Medical Service Act, the crime of fraud, and the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud
3. Conclusion
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kwon Soon-il (Presiding Justice)