[1] The intentional content of a crime concerning concealment of criminal proceeds, etc.

[2] The time to commence the commission of a crime concerning concealment of criminal proceeds, etc.

[3] The case holding that the act of opening an account to receive money from bank robbery cannot be deemed to have commenced the crime of concealing criminal proceeds, etc.

[1] In order to punish a person who has committed an act of concealing criminal proceeds pursuant to Article 3(1)3 of the Act on Regulation and Punishment of Criminal Proceeds Concealment, or a person who has committed an act of concealing criminal proceeds for the purpose of promoting a specific crime or pretending criminal proceeds as legitimately acquired property, such person needs to be aware that his/her property constitutes criminal proceeds under subparagraphs 2 through 4 of Article 2 of the same Act. However, in light of the legislative purpose of the above Act (Article 1) and the form of elements of the crime, such recognition is sufficient to recognize the fact that the pertinent property constitutes criminal proceeds under subparagraphs 2 through 4 of Article 2 of the same Act, etc., and it does not necessarily have to know the type or specific contents of such crime.

[2] In order to punish an attempted crime of concealment of criminal proceeds, etc. under Article 3(1)3 of the Act on Regulation and Punishment of Criminal Proceeds Concealment, it shall be recognized that the implementation was commenced. The commencement of such concealment act can only be conducted when criminal proceeds, etc. were generated. Thus, it is difficult to recognize that the commission of the crime of concealment of criminal proceeds, etc. was commenced without criminal proceeds, in the absence of such criminal proceeds, etc.

[3] The case holding that opening an account to receive money from bank robbery cannot be deemed to have commenced the crime of concealing criminal proceeds, etc.

[1] Articles 2 and 3(1)3 of the Act on Regulation and Punishment of Criminal Proceeds Concealment, Article 13 of the Criminal Act / [2] Article 3(1)3 of the Act on Regulation and Punishment of Criminal Proceeds Concealment, Articles 25 and 28 of the Criminal Act / [3] Article 3(1)3 of the Act on Regulation and Punishment of Criminal Proceeds Concealment, Articles 25 and 28 of the Criminal Act

Defendant 1 and one other

Defendants

Busan High Court Decision 2006No224 decided July 20, 2006

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

The Defendants’ grounds of appeal are also examined.

1. In accordance with Article 3(1)3 of the Act on the Regulation and Punishment of Criminal Proceeds Concealment (hereinafter referred to as the “Act”), in order to punish a person who has committed an act of concealing criminal proceeds, etc. for the purpose of promoting a specific crime or pretending criminal proceeds as legitimately acquired property, the actor needs to be aware of the fact that the property he/she has concealed constitutes criminal proceeds, etc. under Article 2 subparag. 2 through 4 of the Act. However, in light of the legislative purpose (Article 1) of the Act to fundamentally eliminate the economic factors that encourage specific crimes and the form of the constituent elements, such recognition is sufficient to recognize the fact that the relevant property constitutes criminal proceeds, etc. under subparagraphs 2 through 4 of Article 2 of the Act, and does not necessarily have to know the type and details of such crime.

The facts charged of this case are as follows: (a) the Defendants requested the so-called "laundry of money" as to the amount of KRW 100,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,000,000,00,000,00,00,00,00,00,00,00.

In conclusion, in this case, the judgment of the court below on the premise that whether the Defendants knew of the robbery of Nonindicted Party 1 in advance cannot affect the establishment of the crime is justifiable. The court below did not err by violating the rules of evidence or by misapprehending the legal principles as alleged in the grounds of appeal.

In addition, in relation to accomplices who are co-processed with more than two persons in a crime, the conspiracy does not require any legal punishment. It is a combination of two or more persons to jointly process a crime and realize the crime. Even if there was no procedures of the whole conspiracy, if the combination of doctors is made in order or impliedly through several persons, the conspiracy is established (see Supreme Court Decisions 92Do226, Nov. 27, 1992; 2004Do1465, May 28, 2004, etc.).

In light of the above legal principles and records, the judgment of the court below that the defendants conspired with the non-indicted 2, 3, 4, and 1 to commit the crime of this case is justified. The court below did not err in the misapprehension of the rules of evidence or in the misapprehension of legal principles as to co-principal as alleged in the grounds of appeal.

2. However, it is difficult to accept the lower court’s finding the Defendants guilty of the primary charges of this case, which contain “Attempted Crime” with regard to the concealment of criminal proceeds, etc., for the following reasons.

In this case, in order to punish the Defendants as attempted criminals of the crime of concealment of criminal proceeds, etc. under Article 3(1)3 of the Act, the Defendants shall be recognized as having commenced the commission of the crime, and the commencement of the commission of the above concealment act shall be possible only when criminal proceeds have accrued. Thus, in the absence of criminal proceeds, it is difficult to recognize the commencement of the commission of the crime of concealment of criminal proceeds, etc.

However, the Defendants’ crime of this case committed by Nonindicted 1’s attempted to force the Defendants to transfer money of KRW 95 billion to the bank account opened by the Defendants by threatening them with air gun, and did not actually generate criminal proceeds. The Defendants’ act, as stated in its reasoning, constitutes a preliminary crime under Article 3(3) of the Act, which can be established at the stage of preparation before reaching the commencement of the commission of the commission of concealment of criminal proceeds, cannot be deemed as an attempted crime of concealment of criminal proceeds, etc., regardless of whether the Defendants’ act constitutes a preliminary crime under Article 3(3) of the Act which can be established at the stage of preparation before reaching the commencement of the commission of concealment of criminal proceeds

Nevertheless, the lower court, on the grounds stated in its reasoning, deemed that the Defendants started the commission of the crime of concealing criminal proceeds, etc. when they opened the instant account, and found the Defendants guilty of the primary charges of this case. In so doing, the lower court erred by misapprehending the legal doctrine on the timing of commencement of the crime of concealing criminal proceeds, etc. under Article 3(1)3 of the Act, thereby adversely affecting the conclusion of the judgment.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)