Confiscation and collection scope in relation to the crime of good offices acceptance under the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

The purpose of necessary confiscation or collection under the provisions of Article 10 (2) and (3) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes is to deprive a criminal or a third party of money and valuables or other benefits and prevent the criminal from holding unlawful profits. Thus, if the defendant provided a loan, which belongs to the duties of officers and employees of a financial institution, through the method of raising funds, and actually received money and valuables, some of the money and valuables received under the pretext of arranging the loan, which is the matters belonging to the duties of officers and employees of the financial institution, and paid to a pre-owner who actually received the money and valuables as a preservation of the difference between the deposit interest and the bond

Articles 7, 10(2), (3), and 10(3) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jong-soo and 1 other, Counsel for plaintiff-appellant-appellant-appellant-appellant-appellant-appellant-appellant-Appellee)

Defendant

Defendant

Attorney Park Jong-hwan et al.

Seoul High Court Decision 93No2273 delivered on October 8, 1993

The part of the judgment below concerning collection shall be reversed.

4,500,000 won shall be additionally collected from the defendant.

The defendant's remaining appeals are dismissed.

The defendant's national ships and private defense counsel's grounds of appeal are also examined.

1. Examining the relevant evidence in comparison with the records, the court below acknowledged the fact that the defendant received 37,000,000,000 won from the above credit depository due to the difference between the interest on the credit depository's deposit and the interest on the bonds to the non-indicted 1, the head of the housing association, who is the head of the housing association, who wants to borrow 1,000,000 won for the lending of 1,000,000 won from the above credit depository due to the nature of the so-called financing, such as requiring the former to deposit 1,00,000,000 won in Incheon to the credit cooperative located in Ansan Mutual-Aid and Finance in order to preserve the difference between the interest on the bonds's deposit and the interest on the bonds's brokerage, and therefore, it did not err in the misapprehension of the legal principles as to the referral of good offices under the Act on the Aggravated Punishment, etc. of Specific Economic Crimes or in the misapprehension of legal principles as to this error.

2. The necessary confiscation or collection pursuant to the provisions of Article 10(2) and (3) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes is aimed at depriving a criminal or a third party of money and valuables or other benefits and preventing such person from holding unlawful profits. Thus, if the defendant raised a part of the money and valuables received under the pretext of arranging a loan, which is a matter belonging to the duties of officers and employees of a financial institution, through the method of financing, and actually received money and valuables in accordance with the purport of actually receiving the money and valuables, if he paid the money as a preservation of the difference between the deposit interest and the bond interest, the part is not related to the defendant, and it is reasonable to see that only

According to relevant evidence and records, the Defendant paid KRW 32,50,000 out of the above amount of KRW 37,000,000, which was received as a loan intermediary title from Nonindicted Party 1, to the former owner through Nonindicted Party 1 as a compensation for the difference in interest, and can be recognized that only the remainder of KRW 4,500,000 has been consumed as the Defendant’s share. Thus, in this case, the amount to be collected from the Defendant is only KRW 4,50,000,000.

Nevertheless, the court below collected the total amount of KRW 37,00,000 from the defendant originally received from the non-indicted 1. Thus, the court below erred by misapprehending the legal principles on the additional collection under Article 10 (2) and (3) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, and it is clear that such illegality has influenced the judgment. Therefore, the argument that points out this error is reasonable, and the part concerning the additional collection among the judgment of the court below is not reversed.

3. Therefore, according to Articles 391 and 396 (1) of the Criminal Procedure Act, the part concerning the collection of additional charges among the judgment below shall be reversed, and since the defendant's consumption of 4,500,000 won remaining after payment of the difference in the above interest shall not be confiscated, the equivalent amount shall be collected in accordance with Article 10 (3) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes. The remaining appeal by the defendant is dismissed as it is without any justifiable reason, and it

Justices Yoon Young-young (Presiding Justice)