[특정경제범죄가중처벌등에관한법률위반(공갈),폭력행위등처벌에관한법률위반,공정증서원본불실기재,공정증서원본불실기재행사,사문서위조,사문서위조행사,공갈,권리행사방해][공1995.8.1.(997),2691]
(a) The meaning of the amount of profit under Article 3(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes
(b) The amount of profit if a person has been granted a right to collateral security of 300 million won with a maximum debt amount on condition that he/she withdraws a compulsory auction after applying for a compulsory auction on the real estate owned by the victim with a promissory note of 600 million won at par
A. The amount of profit under Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes refers to the sum of the amount of profit if the crime of simple one crime or comprehensive one crime is constituted, but the amount of profit refers to the actual amount of profit in light of the legislative purport of the provision
B. The case holding that the defendant's substantial amount of profit cannot be over KRW 600 million on the ground that the right to collateral security has strengthened the amount of 600 million with the existing claim secured by the defendant, on the ground that the right to collateral security has increased the amount of 600 million won with the existing claim secured by the defendant, on the condition that a compulsory auction for real estate owned by the victim was applied for in the name of debt, but the right to collateral security was established on the condition that the defendant withdraws the compulsory auction on the real estate in the name of debt.
Article 3(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes and Article 350 of the Criminal
Defendant 1 and one other
Attorney Shin Young-young et al., Counsel for the defendants
Seoul High Court Decision 94No3249 delivered on February 28, 1995
All appeals are dismissed.
With respect to Defendant 1, 60 days under confinement after an appeal shall be included in the original sentence.
Defendant 1’s grounds of appeal and the Defendants’ national and private defense counsel’s grounds of appeal are also examined.
Examining the relevant evidence according to the records, we affirm the measures of the court below that recognized each criminal facts in the judgment of the defendants, and there is no violation of the rules of evidence or incomplete deliberation, as otherwise alleged in the theory of lawsuit, that affected the conclusion of the judgment.
The amount of profit under Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes refers to the sum of the amount of profit if a crime of simple one crime or comprehensive one crime is established. However, in light of the legislative intent of the above provision, the amount of profit is the actual amount of profit. Thus, as recognized by the first instance judgment maintained by the court below in this case, Defendant 1 issued by the victim from the victim, took a promissory note with a face value of 300 million won which is notarized by the non-party notary public at the office of the non-party Jung-do, and received a legal penalty of 300 million won for compulsory auction on the real estate owned by the victim in the name of debt, on condition that the above notarial deed applied for a compulsory auction on the real estate owned by the non-party under the above notarial deed and withdrawal of the compulsory auction, the above mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-backed amount is not more than 600 million won, and thus, the defendant's actual amount of profit cannot be included in the above amount of profit.
All arguments are without merit.
Therefore, all appeals by the Defendants are dismissed, and as to Defendant 1, 60 days of detention days after the appeal shall be included in the principal sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Cho Chang-tae (Presiding Justice)