[특정경제범죄가중처벌등에관한법률위반(사기)][공1991.3.15.(892),900]
Where Article 3 (1) 3 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes is amended after the appellate court sentenced to aggravated punishment by applying Article 3 (1) 3 of the same Act, and Article 3 (1) 3 of the same Act is deleted, whether it constitutes "when the sentence is modified after the judgment" (affirmative)
Article 3 (1) 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 4292 of Dec. 31, 1990) provides that if the above amount of profit is more than 500 million won, a person who committed the crime may be punished for aggravated punishment, on the ground that the value of property gains acquired or let a third party acquire through fraud is more than 100 million won but less than one billion won, it shall be deemed that there is a reason corresponding to "when the sentence is changed after the judgment" under Article 383 (2) of the Criminal Procedure Act as to the above facts charged.
Article 383 subparagraph 2 of the Criminal Procedure Act, Article 1 (1) and (2), Article 347 of the Criminal Act, Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 3 (1) 3 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 4292 of Dec. 31, 190)
Supreme Court Decision 90Do2485 delivered on January 8, 1991 (Gong1991, 782) 90Do2538 delivered on January 25, 1991 (Dong District Court Decision 90Do2821 delivered on January 25, 1991)
Defendant
Defendant
Attorney Kim Hyun-soo
Seoul High Court Decision 87No3722, 89No3037 delivered on September 28, 1990
The judgment of the court below is reversed.
The case is remanded to Seoul High Court.
1. First, we examine the grounds of appeal by defense counsel.
When examining the evidence of the first instance court as cited by the court below in comparison with the records, it can sufficiently be recognized that the defendant deceiving the non-indicted iron to obtain property benefits equivalent to KRW 101,178,565, and that the non-indicted Kim Byung-be has acquired property benefits equivalent to KRW 200,000 from the non-indicted Kim Byung-gun Co., Ltd. by deceiving the above Kim Byung-gun, and then deceiving him to acquire property benefits equivalent to KRW 101,178,565, and the judgment below cannot be deemed to have erred by violating the rules of evidence inconsistent with the theory of lawsuit or by erroneously recognizing the facts by applying the law. Thus, there
2. The following judgments are made ex officio:
The court below found the defendant guilty on the ground that the defendant committed a crime under Article 347 (Fraud) of the Criminal Act and the value of property gains acquired or let a third party acquire by such criminal act constitutes 100 million won or more but less than one billion won, it applied Article 3 (1) 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes to punish the defendant. However, the above Act was amended by Act No. 4292 of Dec. 31, 1990 following the decision of the court below, and Article 3 (1) 3 of the Criminal Procedure Act was deleted, and since Article 3 (1) 2 of the same Act was deleted, each of the facts charged in this case constitutes "when there is a change in the sentence after the judgment" under Article 383 (2) 2 of the Criminal Procedure Act.
3. Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition with the assent of all participating judges.
Justices Lee Jae-sung (Presiding Justice)