[2] The method of calculating the amount of profit under Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes in a case where the invested money received through deception is returned to the victims and the invested money is continuously received by re-investment in such money

[3] Legislative intent of Article 3 of the Act on the Regulation of Conducting Fund-Raising Business without Permission

[4] Whether an act of raising funds by soliciting direct investment to a person who is aware of the general public constitutes an act of fund-raising without permission (affirmative with qualification)

[2] If the defendant received the investment money from the victims without any intention or ability to properly pay the principal and the profits, and received the investment money, it constitutes a crime of fraud each time the investment money is received. If the defendant returned the investment money received to the victims and received the investment money continuously in a way that he received the money again after re-investment, the total amount of the investment money received by the money by deceit shall be the amount of profit under Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, but the amount of profit shall not be calculated by deducting the returned principal and profits.

[3] Article 3 of the Act on the Regulation of Conducting Fund-Raising Business without Permission or Approval under the related Acts and subordinate statutes provides that "the act of importing investment money under the agreement to pay the whole amount of the investment money or an amount exceeding it to the future" under subparagraph 1 of Article 2 as an act of fund-raising business without permission or approval. The legislative intent of regulating the act of fund-raising business without permission or approval under the related Acts and subordinate statutes lies in protecting good customers and establishing a sound financial order.

[4] In light of the legislative intent, etc. of Article 3 of the Act on the Regulation of Conducting Fund-Raising Business without Permission, even in cases where funds are raised from those who do not have any awareness of the nature of the act of raising funds through advertisements as well as those funds are raised by directly soliciting investment from those who are aware of the nature of the act of raising funds, if there is an opportunity to participate in an investment if anyone wishes to do so, it shall be deemed that it constitutes an act of raising funds from many and unspecified persons and constitutes an act of receiving funds without permission.

2. The "amount of profit" under Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter "Special Economic Crimes") is established when there is a delivery of property due to deception, and the "amount of profit" does not affect whether the sum of the values of the property or property gains acquired or let a third party acquire by committing the listed crimes is the object of illegal acquisition or not, and ultimately, whether such gains have been realized or not (see, e.g., Supreme Court Decisions 9Do4305, Feb. 25, 2000; 2003Do8231, Mar. 26, 2004).

Therefore, if the defendant received the investment money from the victims without the intention or ability to properly pay the principal and the profits, and received the investment money, it is established by fraud each time the investment money is delivered. If the defendant returned the investment money received to the victims and received the investment money continuously in the manner of receiving the re-investment of the money again, the total sum of the investment money received by the money through the fraud constitutes the amount of profit as provided in Article 3 (1) of the Special Economic Crimes Act, and it is not necessary to calculate the amount of profit by deducting the returned principal and the profits.

The judgment of the court below which is the same purport is just, and there is no error of law such as misunderstanding of legal principles as to the amount of profit as provided in Article 3 (1) of the Act.

3. Article 3 of the Act on the Regulation of Conducting Fund-Raising Business without Permission or Approval under the related Acts and subordinate statutes provides that "the act of importing investment money to the future by promising the future to pay the full amount of investment money or an amount exceeding it" under subparagraph 1 of Article 2 as an act of fund-raising business without permission or approval. The legislative intent of regulating fund-raising business without permission or approval under the related Acts and subordinate statutes lies in protecting good traders and establishing a sound financial order (see Supreme Court Decision 2003Do2213, Nov. 24, 2005).

In light of such legislative intent, it is reasonable to view that the act of raising funds from many and unspecified persons as an act of raising funds, even in cases where funds are raised by recommending direct investment from those who do not have any awareness, such as inviting investors to raise funds through advertisements, and in cases where funds are raised by being directly invested by those who are aware of their knowledge, if any, in terms of the structure or nature of the act of raising funds is provided with an opportunity to participate in the investment if any, is desired.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the act of fund-raising without delay.

4. The argument that the sentence of the court below is excessive cannot be a legitimate ground for appeal, inasmuch as a sentence of less than 10 years was imposed against the defendant.

5. Therefore, the appeal shall be dismissed, and part of the 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 Son Ji-yol (Presiding Justice)