Requirements for each crime repeatedly committed for a certain period in property crimes, such as fraud, and matters to be considered in determining whether such crime constitutes a single comprehensive crime / Standard for determining the unity and continuity of a crime

In the case of property crimes, such as fraud, where the same victim has repeatedly committed the same kind of crime under the single and continuous criminal intent with the same victim for a certain period, each crime may be a single comprehensive crime: Provided, That whether each crime is a single comprehensive crime or concurrent crime depending on the amount of damage, etc. depending on whether the special law that requires the aggravated punishment is applied, and thus, has a significant impact on the defendant up to the judgment of sentencing and the statute of limitations and res judicata. In particular, the singleness and continuity of a crime shall be reasonably determined based on logical and empirical rules by thoroughly examining the method and manner of an individual crime, the motive of the crime, the interval between each crime, and the same opportunity and relationship, and the existence of a subsequent crime, namely, whether there are any circumstances to deem that there exists the division or renewal of the crime.

Articles 37 and 347 of the Criminal Act; Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

Defendant

Defendant

Attorney Jeong Jong-il

Seoul High Court Decision 2016No1101 decided June 30, 2016

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. In the event that property crimes, such as fraud, have repeatedly committed the same kind of crime under the single and continuous criminal intent against the same victim for a certain period, each crime may be a single and continuous comprehensive crime. However, whether each crime is a concurrent crime, depending on the amount of damage, etc. depending on whether the special law that requires the aggravated punishment is applied, and the judgment of sentencing and the prescription of public prosecution and res judicata, are considerably affected on the defendant. In particular, the singleness and continuity of a criminal shall be reasonably determined based on logical and empirical rules, by taking into account the method and manner of each individual crime, the motive of the crime, the interval between each crime, and the same opportunity or relationship, and whether there are any circumstances to deem that there has been the interruption or renewal of the criminal, etc.

2. Around August 2008, the lower court: (a) on the ground that the Defendant made a false statement to the victim that “the rate of return from funds operated in Korean currency securities reaches 6.5% per annum; and (b) made an investment because it would be good for it; (c) received KRW 491,210,000 from the victim during a total of seven times from August 11, 2008 to June 22, 2012; and (d) received KRW 7.5% high interest rate of 7.5% from the victim’s high interest rate of 30 million from the fund solicitation; (b) received the victim’s investment in this old account from December 28, 201 to June 10, 201; and (c) maintained the judgment of the lower court by comprehensively taking account of the Defendant’s total amount of KRW 400,000,000 from June 10, 201.

3. 그러나 적법하게 채택된 증거에 의하여 알 수 있는 다음의 사정, 즉 ① 한화증권 펀드와 동양종금증권 펀드를 구분하여 각 범행 사이의 시간적 간격을 보면, 한화증권 펀드 투자 명목의 제1심판결 별지 범죄일람표(1)의 순번 2번과 3번 범행 사이는 약 1년, 순번 5번과 6번 범행 사이는 약 2년 7개월, 동양종금증권 펀드 투자 명목의 위 범죄일람표(2)의 순번 2번과 3번 범행 사이는 약 1년 4개월에 이르는 점, ② 위 범죄일람표(1)의 순번 6번 범행은 피고인이 투자유인을 한 것이 아니라 피해자가 먼저 피고인에게 연락하여 여윳돈이 생겼다며 투자할 수 있느냐고 문의하자 비로소 피고인이 ‘빈 구좌가 생겨 투자가 가능하다’는 취지로 기망행위를 하기에 이른 것으로, 피고인이 먼저 투자를 제의한 그 이전의 범행과는 범행경위에 차이가 있는 점, ③ 동양종금증권 펀드의 경우 피고인이 2011. 12.경 동양종금증권으로부터 ‘고수익 7.5% 고정금리’라는 문자메시지를 받고 피해자에게 그 펀드에 투자할 것을 권유한 것으로 보이는데, 그 직전 범행인 한화증권 펀드 관련 위 범죄일람표(1)의 순번 5번 범행과도 약 1년 1개월의 시간적 간격이 있는 점 등에 비추어 보면, 그 각 범행 사이의 범의의 단일성과 계속성이 인정된다거나 그 범행방법이 동일한 경우라고 쉽게 단정할 수 없다.

Therefore, since the facts charged in this case do not constitute a single comprehensive crime, but a part of the crimes are established, and the amount of profit of each crime does not reach KRW 500 million as provided by Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, it cannot be ruled out that only fraud is established under the Criminal Act. Nevertheless, without sufficient deliberation as to whether the defendant's unity and continuity of the whole crime of this case can be recognized, the court below recognized all of the facts charged in this case as a single comprehensive crime only for the reasons as stated in its reasoning. In so doing, it erred by misapprehending the legal principles as to a single comprehensive crime, or by failing to exhaust all necessary deliberations, thereby affecting the conclusion of the judgment.

4. It is so decided as per Disposition by the assent of all participating Justices on the bench, and the case is remanded to the court below for a new trial and determination.

Justices Kwon Soon-il (Presiding Justice)