[2] The elements for the establishment of a conspiracy relationship with the co-principal

[3] The meaning of habitual fraud

[4] The meaning of "amount of profit" under Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

[5] In a case where a new investment is made in the principal and interest of an existing loan without actually receiving funds for the purpose of evading the return after deceiving the victim by deceiving the victim, whether a separate crime of fraud is established (negative)

[2] In relation to accomplices who are jointly engaged in a crime by more than two persons, the conspiracy does not require any legal punishment, but is only a combination of two or more persons to jointly process a crime and realize the crime. Although there was no process of conspiracy, if the combination of doctors is formed by mutual agreement in order or impliedly, among several persons, then the conspiracy is established. As long as such conspiracy was conducted, those who did not directly participate in the act of conspiracy shall be held liable as co-principal for the other's act.

[3] Habitualness in habitual fraud refers to the nature of the actor as a habit of repeated fraud. In determining the existence of such habition, the criminal records of the fraud are important data to determine whether the crime was committed, but even if there are no criminal records of the fraud, the habituality should be recognized in cases where the habition of the fraud is acknowledged in light of all the circumstances, such as recovery of the crime, means, methods, and motives.

[4] The amount of profit under Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes refers to the aggregate of the amount of profit or the amount of profit if the crime of simple crime is established, but the amount of profit is the actual amount of profit in light of the purpose of legislation.

[5] In the case of fraud involving the taking-off of property, if there is a delivery of property by deception, it constitutes a violation of the victim's property by itself, and thereby, the crime of fraud is established. Even if it was done in the form of newly investing the principal and interest of the loan without actually receiving the funds for the purpose of evading the return of the property acquired by deception by deceiving the victim, this does not infringe a new legal interest, and thus does not constitute a separate crime of fraud

1. As to Defendant 1’s ground of appeal

In this case where the defendant appealed only on the ground of unfair sentencing, and the court below reversed ex officio the judgment of the court of first instance, and then rendered a sentence identical to the judgment of the court of first instance, the defendant may not submit the judgment of the court below as the ground of appeal for misapprehension of legal principles or misunderstanding of facts (see, e.g., Supreme Court Decisions 90Do2276, Feb. 26, 1991; 94Do2134, Feb. 3, 1995).

2. As to the ground of appeal on Defendant 2 and 3

A. On the violation of the Door-to-Door Sales Act

According to the records, the investment loan attraction organization of the investment development company of this case shall be composed of the head of division, the director, the director, the executive director, the managing director, and the representative director, 5% of the investment loan it has recruited, 2% of the investment loan it has collected by the head of the headquarters and the director, 0.3% of the total amount of the investment loan of the head office of Busan, and 0.3% of the total amount of the investment loan of the head office of the company of this case to the director, 0.3% of the total amount of the investment loan of the head office of Busan (0.3% of the investment loan made under the responsibility of the non-party 1, 2, and 3, the head office of this case, the managing director, and the representative director shall pay 0.3% of the total amount of the investment loan of the above company as allowances to the head of division or the chief of the headquarters, and it constitutes a multi-level sales organization of this case, which is not in violation of the rules of evidence 98.

B. As to the public offering

In relation to co-offenders who are jointly engaged in a crime, the conspiracy does not require any legal punishment, but is only a combination of two or more persons to jointly process a crime and realize the crime. Even if there was no process of the whole conspiracy, if the combination of doctors is made in order or implicitly through several persons, the conspiracy relationship is established, and even if there was no direct participation in the conduct, the person is held liable as co-principal for the other co-principal's act.

According to the records, even though the Defendants conspired with Defendant 1, etc. in a successive manner and could not return the principal and interest of the investment to the investors within a short period, the Defendants and Defendant 1, etc. could not be exempted from the liability for the violation of the Door-to-Door Sales Act, the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter referred to as the "Special Economic Crimes Act") and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter referred to as the "Special Economic Crimes"), and there is no error in the misapprehension of legal principles or the rules of evidence as alleged.

C. Regarding habitualness

Habitualness in habitual fraud refers to the nature of the actor as a habit of repeated fraud. In order to determine the existence of such habition, the criminal records of fraud are important data to determine the existence of such habition, but even if there are no criminal records of fraud, where the habition of fraud is recognized by taking into account all the circumstances, such as recovery of the crime, means and methods, motive, etc. (see, e.g., Supreme Court Decisions 86Do778, Jun. 10, 1986; 95Do955, Jul. 11, 1995).

In light of all the circumstances, such as the applicable laws, frequency, motive, and means of the instant crime, which are acknowledged by the records, even if the Defendants did not have any criminal record prior to the instant crime, it is recognized that there was a habit of fraud against the Defendants at the time of the instant crime. Therefore, the judgment of the court below to the same purport is acceptable, and there is no violation of the rules of evidence as otherwise alleged.

D. As to the calculation of the amount of profit as prescribed in Article 3(1) of the Act on the Aggravated Punishment

According to the reasoning of the judgment below, the court below found that the defendants conspired as executive officers of the above investment finance, which is a multi-level financial sales organization, and habitually invested KRW 500,000 per unit of money to customers, the court below held that the defendants 1 and 2, etc. received 2,364,000,000 in total from 2,388 victims of Daegu Branch, etc. and 2,380,000 won in total from 838 victims of Busan Head Office, and 7,867,00,000,000 won in total from 2,380,000 won in total from 2,380,000 won in each loan.

However, it is difficult to accept the decision of the court below that the defendants received each of the above money from the victims as a loan, and therefore, the sum of the above money is the amount of profit of the defendants due to the above fraud for the following reasons.

The amount of profit referred to in Article 3 (1) of the Act refers to the sum of the amount of profit or the amount of profit if the crime of simple crime is constituted. However, in light of the purpose of legislation, the amount of profit refers to the actual amount of profit (see Supreme Court Decision 95Do825, Jun. 30, 1995). However, in a case of fraud involving the taking of property, if there is a delivery of property by deception, it constitutes an infringement on the victim's property, thereby fraud is established (see, e.g., Supreme Court Decisions 95Do825, Jun. 30, 1995; 2000Do1899, Jul. 7, 2000). After that, even if the new investment of the principal and interest of the existing loan was made without actually receiving funds for the purpose of avoiding the return of the property acquired by deception, it does not infringe on new legal interests, and thus does not constitute a crime of fraud.

However, according to the records, although all of the loans kept by the defendants were issued in the form of a new loan and the new loan certificate has been issued, the considerable part of the loan is a new loan to guarantee the above high-interest as before and to be returned by deceiving the defendants to the victims when they make an investment again at maturity, and it is merely a new loan with a certificate issued, and it is not a loan equivalent to the face value of the loan actually issued. If there is a factual basis, the defendants had been inducing the victims by deceiving the victims from the beginning, so the crime of fraud was established immediately after the receipt of the loan was received, and the loan certificate was newly issued, and even if the loan certificate was newly issued, it constitutes a separate loan without the actual receipt of the loan, and it constitutes a crime of fraud as well as a fraud separate from the existing loan to conceal the crime of fraud or to avoid the return of the loan money, and it constitutes a separate crime of fraud.

Therefore, the court below recognized the sum of the borrowed money as the amount of profit by considering the loan actually received by the defendants as the amount of profit, and thereby newly borrowing the principal and interest of the borrowed money which was acquired through the money without actually receiving funds, and issued the certificate of the borrowed money does not constitute a separate crime of fraud, and thus should should have excluded the face value from the sum of the amount of profit. However, it is erroneous in the misapprehension of legal principles as to the amount of profit as provided by Article 3 (1) of the Act on the Aggravated Punishment, etc., or in the misapprehension of legal principles as to the amount of profit, or as a result, it is erroneous in the misapprehension of facts against the rules of evidence.

3. Thus, the judgment of the court below cannot be maintained with respect to the violation of the special law (Fraud) against Defendant 2 and 3. Meanwhile, since the above ground for reversal against Defendant 2 and 3 is common about the violation of the special law (Fraud) by Defendant 1, who is a co-defendant, the judgment of the court below as to this part should be reversed in accordance with Article 392 of the Criminal Procedure Act. Since the court below sentenced the defendants to a single punishment on the ground that the crime of violation of the special law (Fraud) and the remaining crimes found guilty constitute concurrent crimes under the former part of Article 37 of the Criminal Act, the part of the judgment of the court below against the defendants shall be reversed, and this part shall be remanded to the court below for a new trial and determination, this part shall be remanded to the court below

Justices Song Jin-hun (Presiding Justice)