[1] The meaning of "transaction concerning the extinction of claims" under Article 21 (1) 1 of the former Foreign Exchange Control Act

[2] The case holding that if the non-resident participated in the act of payment at issue among residents, the non-resident can be punished as an accomplice for the violation of the method of payment at issue

[1] The "transaction concerning the extinction of a claim" under Article 21 (1) 1 of the former Foreign Exchange Control Act (repealed by Law No. 5550 of September 16, 1998) is not only the case where a claim is extinguished due to a separate juristic act causing the extinction of a claim, but also the case where a claim is extinguished due to repayment.

[2] The case holding that if the non-resident participated in the act of payment at issue among residents, the non-resident can be punished as an accomplice for the violation of the method of payment at issue

[1] Article 21 (1) 1 of the former Foreign Exchange Control Act (repealed by Act No. 5550 of September 16, 1998) / [2] Articles 30 and 33 of the Criminal Act, Article 18 (1) 3 of the former Foreign Exchange Control Act (repealed by Act No. 5550 of September 16, 1998), Article 27 (1) 3 of the former Enforcement Decree of the Foreign Exchange Control Act (repealed by Presidential Decree No. 16207 of March 30, 199)

Defendant

Prosecutor

Seoul District Court Decision 97No8155 delivered on October 30, 2001

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

1. Regarding ground of appeal No. 1

According to the reasoning of the judgment below, the court below determined that the meaning of "transaction on the extinction of claims" under Article 21 (1) 1 of the former Foreign Exchange Control Act (amended by Act No. 5550 of Sep. 16, 1998, hereinafter "Foreign Exchange Management Act") refers to a case where claims are extinguished due to separate juristic acts, i.e., correction, transfer of claims, etc. rather than merely means payment, etc. that causes the extinction of claims, and thus, in this case, the act of entering into an gambling loan contract with the hotel of U.S. who is a non-resident without permission in this case does not constitute capital transaction as "transaction on the occurrence of claims," but it cannot be deemed that the act of the defendant who received the amount of loan or received the amount of loan in accordance with the loan contract constitutes "transaction on the extinction of claims."

However, "transaction on the extinction of claim" under Article 21 (1) 1 of the Foreign Exchange Control Act shall be deemed not only in case where a claim is extinguished due to a separate juristic act which causes the extinction of claim, but also in case where a claim is extinguished due to repayment.

Nevertheless, the court below determined that the defendant's act of receiving the repayment of the loan from the non-indicted 1 does not constitute "transaction on the extinction of the claim". Thus, there is an error of law by misunderstanding the legal principles on "transaction on the extinction of claim", which affected the conclusion of the judgment.

2. Regarding ground of appeal No. 2

According to the reasoning of the judgment below, even according to the facts charged in this case, the court below determined that even if the defendant kept his money in custody and let the non-indicted 2 transfer or deliver the money from time to time to time to the non-indicted 2. Thus, the non-indicted 2 disposes of the money entrusted by the defendant. Thus, it cannot be viewed that there was a transaction under the Foreign Exchange Control Act between the defendant and the non-indicted 2, and the non-indicted 2 cannot be punished as co-offender for the violation of the method of payment by the resident under the Foreign Exchange Control Act, where the resident

However, Article 18 (1) 3 of the Foreign Exchange Control Act provides that "if a resident makes payment, etc. to a resident or non-resident who is not a party to the transaction in question for the settlement between a resident and a non-resident or between a non-resident or between a non-resident, he shall report methods of payment, etc. to the Minister of Finance and Economy or obtain permission from the Minister of Finance and Economy in accordance with the classification prescribed by the Presidential Decree, and Article 27 (1) 3 of the former Enforcement Decree of the Foreign Exchange Control Act (amended by Presidential Decree No. 16207 of March 30, 199; hereinafter referred to as the "Enforcement Decree") shall obtain permission in accordance with Article 18 (1) 3 of the Foreign Exchange Control Act, the resident shall obtain for the settlement between a resident and a non-resident.

However, in full view of the evidence adopted by the court below, the defendant could not directly bring the gambling funds received from the borrower resident non-indicted 1, etc. as stated in paragraph (1) of the facts charged to the United States, and the defendant left it to the non-indicted 2, who is the resident, and the non-indicted 2 paid or remitted the above money to non-indicted 3, non-indicted 4, non-indicted 5, and non-indicted 6, who is the refunded company, according to the defendant's order. Meanwhile, the non-indicted 3, non-indicted 4, and non-indicted 5, as to the transaction partner non-indicted 7 in the United States, and the non-indicted 6, as to the non-indicted 8, who is the transaction partner in the United States. On the part of receiving the payment, the non-indicted 7 and the non-indicted 8 delivered the U.S. dollars equivalent to

In light of the above circumstances, the defendant's act of delivering won currency as stated in the facts charged by the non-indicted 2 in collusion with the non-indicted 2 who is a resident to the foreign exchange business operator and the non-indicted 6, etc. who is the resident, constitutes a case where the resident makes payment to a resident who is not a party to the transaction in question for the settlement between the resident and the non-resident under Article 18 (1) 3 of the Foreign Exchange Control Act and Article 27 (1) 3 of the Enforcement Decree of the same Act. Although the defendant is a non-resident, as long as he acted in collusion with the non-indicted 2, who is the resident, to the foreign exchange business operator who is the resident, the defendant cannot be exempted from the liability for the crime

Nevertheless, the court below rendered not guilty of the above facts charged on the grounds as stated in its reasoning. In so doing, the court below erred by misapprehending the legal principles on the payment and accomplice in the judgment.

3. Conclusion

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 Jack-dam (Presiding Justice)