[사기][미간행]
[1] The number of crimes of fraud and the method of recording the facts charged in a case where a deceptive act is committed against several victims by each victim in the same manner under the single criminal intent
[2] The case affirming the judgment below dismissing the charge of the crime of fraud on the ground that the victim or the victim's damage cannot be found to be specified in the facts charged
[3] The meaning of a business crime and whether a crime of fraud can be viewed as a business crime (negative)
[4] Whether the court's failure to demand the prosecutor to change the indictment is illegal (negative)
[1] Article 347 of the Criminal Code, Article 254(4) of the Criminal Procedure Act / [2] Article 347 of the Criminal Code, Article 254(4) of the Criminal Procedure Act / [3] Article 347 of the Criminal Code / [4] Article 298 of the
[1] Supreme Court Decision 89Do582 delivered on June 13, 1989 (Gong1989, 1103), Supreme Court Decision 95Do594 delivered on August 22, 1995 (Gong1995Ha, 3305), Supreme Court Decision 95Do2121 delivered on February 13, 1996 (Gong196Sang, 1025), Supreme Court Decision 97Do508 delivered on June 27, 1997 (Gong197Ha, 2424) (Gong201Do6130 delivered on December 28, 201) (Gong202, 2039Do43939 delivered on April 31, 205) (Gong200394, Apr. 24, 2003)
Defendant
Prosecutor
Seoul Central District Court Decision 2003No10818 delivered on March 24, 2004
The appeal is dismissed.
In a case where a single crime is committed by deceiving the other party with the intention of a single crime, and by deceiving the other party through several times through the same method, the entire property shall be a single crime. However, in a case where multiple victims have acquired the property by deceptive act separately against each other, even though the criminal intent is a single crime and the method of crime is the same, the damage legal interests of each victim is independent, so the entire crime is not a single crime, and several separate frauds are established independently for each victim (see, e.g., Supreme Court Decisions 89Do582, Jun. 13, 1989; 2001Do6130, Dec. 28, 2001; 2001Do6130, Apr. 28, 2003). In such a case, the facts charged shall be stated so that each victim and each victim can specify the amount of damage (see, e.g., Supreme Court Decisions 95Do2121, Feb. 13, 1996>
In the same purport, the court below, in relation to the victim as provided in paragraph (1) of the facts charged, it is just to dismiss the public prosecution on the grounds that the victim as provided in paragraph (2) of the facts charged, "all of the facts charged, such as "all of the owners of entertainment establishments in Daegu-gu Dong-gu, Seocheon-gu, Seocheon-gu, Seocheon-gu, Seocheon-gu, Seocheon-gu, Mangdong-dong, Mangdong-dong, Mangdong-dong, Sungdong-dong, Mangdong-dong, and Mangdong-dong, and Kugdong-gu's Do-dong's Do-dong's Do-dong's Do-dong Do-gu Do-dong Do-dong Do- which are located in Sungdong-gu and Sungdong-dong, and the victim's Do-dong Do-dong Do-dong Do-dong Do-dong Do-gu Do-dong Do-gu Do-gu Do-gu Do-gu Do-dong-gu Do-gu Do-gu Do-gu Do-gu."
In addition, a business crime refers to a crime that is naturally expected to be repeated in the nature of the constituent elements due to the type of collective crime, and even if the fraud crime in the judgment of the defendant was repeated, it cannot be deemed a crime that is anticipated to repeat the same kind of act due to the nature of the constituent elements, and therefore, it cannot be deemed a business crime. Therefore, it is just that the court below did not regard the fraud crime of the defendant as a comprehensive crime, and there is no violation of the misapprehension of the legal principles as to the comprehensive crime of a business crime, as alleged in the ground of appeal.
In addition, since the court's decision whether to demand the prosecutor to change the indictment belongs to the discretion of the court, it cannot be said that the court below erred by failing to demand the prosecutor to change the indictment (see Supreme Court Decision 99Do3003, Dec. 24, 199; Supreme Court Decision 2003Do6569, Apr. 27, 2004, etc.). There are no errors in the misapprehension of legal principles as to the changes in indictment by the court below.
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Jack-dam (Presiding Justice)