[1] The meaning of "the act of fund-raising without permission" under Article 2 subparagraph 1 of the Act on the Regulation of Conducting Fund-Raising Business without Permission

[2] The case holding that the defendants' act of importing the investment from the above investors without obtaining permission from the Financial Supervisory Commission constitutes an act of fund-raising under Article 2 subparagraph 1 of the Act on the Regulation of Conducting Fund-Raising Business without obtaining permission from the Financial Supervisory Commission, even though the defendants received the investment from the investors by taking the appearance of an offering of the purchase price through the sale of commercial shares, and paid the profits to the investors by taking the appearance of

[1] In full view of the legislative purport of the Act on the Regulation of Conducting Fund-Raising Business without Permission or the provisions of the above Act, the term “fund-raising business without permission” under Article 2 subparag. 1 of the above Act includes the act of operating a trust business in substance without permission of the Financial Supervisory Commission to make a payment of all or more investments in the future, and thereby importing investments to raise funds from many unspecified persons.

[2] The case holding that the defendants' act of importing the investment from investors without obtaining authorization from the Financial Supervisory Commission is an act of receiving the investment in full or in excess of the amount, and it constitutes an act of receiving the investment without delay under Article 2 subparagraph 1 of the Act on the Regulation of Conducting Fund-Raising Business without permission from the Financial Supervisory Commission, even though the defendants received the investment from investors in the form of the outside of the form of receiving the sale price through the sale of commercial shares and paid the profits to investors in the form of a non-payment of rent

[1] Article 2 subparagraph 1 of the Act on the Regulation of Conducting Fund-Raising Business without Permission / [2] Article 2 subparagraph 1, Article 3, and Article 6 of the Act on the Regulation of Conducting Fund-Raising Business without Permission

[1] Supreme Court Decision 2002Do4498 Delivered on May 30, 2003

Defendant 1 and two others

Defendants

Seoul Central District Court Decision 2005No1302 Delivered on September 2, 2005

All appeals are dismissed.

With respect to Defendant 1, 85 days of detention after an appeal shall be included in the original sentence.

The Defendants’ grounds of appeal (to the extent of supplement in case of supplemental appellate briefs not timely filed) are examined together.

1. As to whether the act constitutes an act of fund-raising without permission

In full view of the legislative purport of the Act on the Regulation of Conducting Fund-Raising Business without Permission, etc. under the finance-related Acts and subordinate statutes, and the legislative content of the said Act that regulates fund-raising activities without permission, etc. from many and unspecified persons for the purpose of protecting good customers and establishing a sound financial order, the “act of fund-raising business without permission” under Article 2 subparag. 1 of the said Act includes an act of making an agreement to actually engage in trust business and to pay an amount in excess of the total amount of investment or an amount exceeding it in the future, and making an investment to raise funds from many and unspecified persons (see Supreme Court Decision 2002Do4498, May 30, 2003).

According to the records, the purpose of the investors of this case (the seller of this case)'s investment is not to acquire the shares of this case, but to acquire the proceeds calculated at a rate of 20% per annum with respect to the investment amount and to recover the total amount of the investment amount after a certain period of time has elapsed. Advertising published by the defendants is incidental to guaranteeing the payment of certain profits and the return of the total amount of the investment amount. The total amount of the investment amount to be made by the investors and the profits agreed to be made by the investors from the sale of land and buildings exceeds the normal sale price and rent of the commercial building of this case. After the formal sale contract was made, the investors of this case contributed the total amount of the investment amount of 39 million won per unit without obtaining the registration of ownership transfer of the shares of this case, and the defendants' act of receiving the shares of this case from the investors of this case can not be seen as an act of receiving the shares of this case in violation of the legal principles as to the act of receiving the rent of this case under the name of the investors of this case.

2. As to the recognition of illegality by Defendant 1 and 2

Article 16 of the Criminal Act provides that "the act of misunderstanding that one's act does not constitute a crime under Acts and subordinate statutes shall not be punishable only when there is a justifiable ground for misunderstanding." It does not mean a simple legal site, but it means that it shall not be punishable if there is a justifiable ground for misunderstanding that one's act does not constitute a crime under Acts and subordinate statutes in his own special circumstances, recognizing the misunderstanding that it does not constitute a crime under ordinary circumstances, and misunderstanding that it does not constitute a crime under special circumstances (see Supreme Court Decision 94Do1793, Jun.

According to the records, in the Seoul Central District Prosecutors' Office on May 24, 2004, Defendant 1 received a decision of non-guilty suspicion on part of the act of receiving the commercial shares of this case at the Seoul Central Prosecutors' Office, and in the same purport, Defendant 1 and 2 knew that the act of receiving the same kind of money by Defendant 1 and 2 had been committed under a single criminal intent prior to the decision of non-guilty suspicion or the imposition of taxes, and as long as it is evident in the record that the act of receiving the same kind of money by Defendant 1 and 2 continued to be committed under a single criminal intent since it was long after the decision of non-guilty suspicion was made, it cannot be deemed that Defendant 1 and 2 knew that the act of receiving the same kind of money in this case was not a crime permitted by the law, and there was no justifiable reason to believe that there was a mistake, as so argued in the grounds of appeal, such as the misapprehension of legal principles as to Defendant 1 and 2, and there is no error of law as alleged in the grounds of appeal.

On the other hand, the Supreme Court precedents cited by Defendant 1 in the supplemental appellate brief are different from the case and are inappropriate to be invoked in this case.

3. As to Defendant 2’s liability with respect to the act of receiving money without delay before April 28, 2004

According to the records, even though Defendant 2 was not an independent sales agent from the first half of November 2003 to the last day of April 2004, it is acknowledged that Defendant 2 performed the act of fund-raising without permission of this case as an employee of the non-indicted corporation (the representative director of the non-indicted corporation) rather than an independent sales agent, but it is evident in the records that Defendant 2 performed the act of fund-raising without permission of this case by acting as an agent for the sales contract and lease contract, and receiving and transferring the investment in the name of the sale price with the knowledge that Defendant 1 performed the act of fund-raising without permission during the above period. However, even though Defendant 2 was not an independent sales agent during the above period, Defendant 2 cannot be exempted from the criminal liability as a joint principal offender with Defendant 1 and the non-indicted. Accordingly, the judgment of the court below which recognized the criminal liability of Defendant 2 on the act of fund-raising without permission of this case for the above period is justifiable, and there is no violation of the rules of evidence

4. Conclusion

Therefore, all appeals are dismissed, and 85 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 Kim Young-ran (Presiding Justice)