[상습사기][공1983.12.1.(717),1672]
Scope of res judicata effect of a final and conclusive judgment on part of habitual fraud crimes
If both a crime of fraud and a fraud committed four times prior to the final and conclusive judgment were all conducted in a defendant's fraudulent behavior, the above two crimes are related to habitual fraud, which is a single comprehensive crime under the substantive law. Therefore, res judicata effect of the final and conclusive judgment on the above crime of fraud will also be limited to the crimes prior to the final and conclusive judgment instituted for habitual fraud, and thus, a judgment of acquittal will be rendered.
Articles 347 and 351 of the Criminal Act; Article 326 of the Administrative Litigation Act
Supreme Court Decision 77Do3564 Decided February 14, 1978 80Do893 Decided May 27, 1980
A
Prosecutor
Suwon District Court Decision 81No1480 delivered on November 20, 1981
The appeal is dismissed.
The prosecutor's grounds of appeal are examined.
According to the judgment of the court below, the defendant acquired South Korea's money more than three times on January 1, 1980 and February 2, 1980, and the defendant was sentenced to the suspension of imprisonment for two years at the Suwon District Court in May 26, 1980, and the judgment became final and conclusive, and other criminal records of the same kind for four times. The above criminal acts of fraud in the judgment sentenced by the defendant as of May 26, 1980 and the acts of fraud over four times in the above case (the defendant's act of fraud in April 2, 197, April 3, 197, July 20, 197, July 20, 197, August 207), all of which appear to have an attitude of approaching each victim to marry, and the means and methods of the crime such as deceiving money by deceiving the other party to repay, and the fact that all of the criminal acts in this case and the above final and conclusive judgment were the criminal acts committed by fraud.
Therefore, the above facts of the crime committed on May 26, 1980 and the crime of this case 4 times are related to habitual fraud, which is a single comprehensive crime under the substantive law. Therefore, the res judicata effect of the final judgment on the crime of fraud sentenced on May 26, 1980 is related to one comprehensive crime, but it also constitutes an excessive violation of the facts charged in this case which were prosecuted for habitual fraud (see, e.g., Supreme Court Decision 77Do3564 delivered on February 14, 1978, and 80Do893 delivered on May 27, 1980). Thus, the judgment of acquittal should be rendered on the facts charged in this case. The judgment of the court below is just, and there is no error of law as to the scope of the trial and the scope of res judicata effect in the substantive concurrent crimes like the theory of lawsuit, and there is no error in the misapprehension of legal principles as to the scope of res judicata effect.
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Shin Jong-young (Presiding Justice)