[특정경제범죄가중처벌등에관한법률위반(사기),부정수표단속법위반][공1993.9.15.(952),2333]
(a) If the person has conspired in sequence acquired financial benefits, the method of calculating the amount of profit prescribed in Article 3 (1) of the Act on the Aggravated Punishment
B. Whether a title holder or a person who is not a direct issuer can become a joint principal offender for the crime under Article 2(2) of the Illegal Check Control Act
(a) The amount of profit in case where he has acquired property profits by conspiracy with other accomplices in sequence by habitually distributing the number of units, bills, etc., and failing to settle it, the amount of profit shall not be calculated by summing up only the profits actually earned by one of the accomplices, but the sum of the values of the goods or pecuniary profits acquired by the last public offering shall be calculated by the sum of the profits actually
B. Even if the issuer or the direct issuer is not the issuer, he can become the joint principal offender of the crime under Article 2(2) of the Illegal Check Control Act by a public offering.
Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 2 (2) of the Illegal Check Control Act, Article 30 of the Criminal Act
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)
A
Defendant
Attorney B
Seoul High Court Decision 93No92 delivered on April 21, 1993
The appeal is dismissed.
The thirty-five days of detention days after the appeal shall be included in the original sentence.
The grounds of appeal by the defendant and his defense counsel are also examined.
1. In comparison with the records, the court below's position that the prosecutor's suspect interrogation protocol on the defendant as evidence of the crime of this case is just and it is not erroneous in the employment of documents which are not admissible as evidence for the same reasons as the theory of lawsuit.
2. In examining the evidence of the first instance court as cited by the court below in the record, it can be sufficiently recognized that the defendant conspireds with other accomplices in order to distribute the party bill and bill, etc. of this case and has not settled it, and there is no error of misunderstanding of facts due to a mistake of facts by violating the rules of evidence as pointed out in the theory of lawsuit. In such a case, the amount of profit shall not be calculated by adding up only the profits actually earned by the defendant, but it shall be calculated by adding up the value of the property or property gains acquired by the last public offering from the victim. Thus, the court below's measures taken by applying Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes to the defendant is just and there is no error of law as to the amount of profit as provided in the above legal provisions.
3. It is reasonable that the court below, in collusion with other accomplices, confirmed that the defendant did not receive the share sheet of this case for the reason of non-transaction, etc. and applied the above provision of the above law, even if not the issuer or the direct issuer, can become joint principal offenders of the crime under Article 2 (2) of the Illegal Check Control Act. Thus, the court below is just in deciding that the defendant did not receive the share sheet of this case, and there is no error in the misapprehension of legal principles
All arguments are without merit.
4. Therefore, the appeal shall be dismissed and the thirty-five days of detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Chocheon-sung (Presiding Justice)