[1] The meaning of "amount of profit" under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

[2] In a case where a multiple victims acquire each pecuniary gain by deception, whether a single criminal intent is established and even if the method of crime is the same (affirmative), and the case where a single crime can be seen as a single crime of fraud (affirmative)

[3] In a case where multiple victims acquired each pecuniary profit by deception, whether several frauds are established for each victim (affirmative), and the number of such crimes (=the crimes of commercial concurrence)

[4] Details of property gains and the method of calculating the amount of such gains, which a person who has created a right to collateral security in the third party's real estate owned by another person by deceiving a third party for the purpose of financing a third party with money or being supplied goods on credit

[1] Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes / [2] Articles 37 and 347 of the Criminal Act / [3] Articles 40 and 347 of the Criminal Act / [4] Article 347 of the Criminal Act

[1] [2] Supreme Court Decision 93Do743 Decided June 22, 1993 (Gong1993Ha, 2193), Supreme Court Decision 2000Do1899 Decided July 7, 200 (Gong2000Ha, 1911) / [1] Supreme Court Decision 2000Do28 Decided March 24, 200 (Gong2000Sang, 1107) / [2] Supreme Court Decision 2011Do769 Decided April 14, 201 (Gong201Sang, 984) / [3] Supreme Court Decision 2010Do930 decided January 13, 201 (Gong2011Sang, 3730 decided April 29, 201) / [308Do1964 decided April 16, 209)

Defendant 1 and one other

Defendant 1 and Prosecutor

Attorney Lee Jong-il

Seoul High Court Decision 2014No2152 decided November 20, 2014

The part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to the Seoul High Court. The Prosecutor’s appeal is dismissed.

The grounds of appeal are examined.

1. As to Defendant 1’s ground of appeal

A. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

(1) The amount of profit as referred to in Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes refers to the sum of the amount of profit or the amount of profit when a single single business is established, and it does not mean the sum of each amount of profit which can be punished as concurrent crimes (see Supreme Court Decision 2000Do28, Mar. 24, 200). In a case where multiple victims acquire each pecuniary profit by deception with each other, even if there is a single crime and the method of crime are identical, it cannot be understood as a single crime, so it cannot be understood as a single crime, and an independent crime of fraud is established by each victim (see Supreme Court Decision 93Do743, Jun. 22, 1993). However, in a case where there are circumstances in which the victim's legal interest is identical due to the formation of a single business, etc., it shall be deemed as a single crime of fraud even if multiple victims are involved, and it shall be deemed as a concurrent crime of fraud (see Supreme Court Decision 2010Do1610, Nov. 214, 2014.

(2) The court below found the victim non-indicted 1, 2, and 3 as follows: (a) holding one-third share of each of the 10,860 square meters of forests and fields in Man-si, Man-si, Pari ( Address 1 omitted); and (b) holding one-third share of each of the 972 square meters of forests and fields ( Address 2 omitted); (c) the victims entered into a sales contract on August 2, 201 with Defendant 1; and (d) concluded a contract on real estate with Defendant 4 on September 5, 201 in accordance with the terms and conditions of the sales contract, the victims, who were co-owners with common interest in disposing of the above real estate at the same time, and thus, found the victims to be identical to the victim's share in each of the above real estate, and therefore, it is reasonable to view that this part of the charges is identical to the maximum amount of debt related to the victim's share in all of the above real estate, and thus, it constitutes a crime of fraud in this part of the Act.

(3) However, it is difficult to accept such determination by the lower court for the following reasons.

According to the records, ① the victim Nonindicted 2, Nonindicted 1, and Nonindicted 5 entered into a contract on May 29, 1962 with respect to only 1/3 share on May 10, 1962. ② The victim Nonindicted 3, on September 24, 2009, completed the registration of ownership transfer due to the agreement and division on July 5, 2002. ③ The victims, at the certified judicial scrivener office, entered into a contract on the purchase of real estate with Defendant 1, etc. and signed and sealed each victims on the sales contract and mortgage contract, etc. ④ The victim stated in the prosecutor’s office that “the co-defendant 1 did not inform the victims of the establishment of a collateral security right by assisting Nonindicted 1 to do so, and made a statement to the court below that “the co-defendant 2 did not inform the victims of the fact that the co-defendant 3 did not inform the victims of the fact.”

As such, in full view of the fact that the victims acquired each share of the victims in our real estate and the victims exercised their right to dispose of their own shares, and there are no other circumstances to deem that the victims are identical with the legal interests of each victim, such as the formation of a single company, etc., the damage legal interests of each victim are independent, and thus, the victim's independent crime of fraud is established, and the act of acquiring each share of property from the victims at the same time and at the same place can be evaluated as one act in light of social norms. Thus, each crime of fraud is a commercial competition relationship between the victims.

(4) Nevertheless, the lower court, solely based on its stated reasoning, deemed Defendant 1’s fraud as a single crime by comprehensively covering each of the crimes against the victims, and determined as a crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud). In so determining, the lower court erred by misapprehending the legal principles on the amount of profit and the number of crimes of fraud as prescribed in Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, thereby affecting the conclusion of the judgment.

B. As to the violation of Article 40(3) of the Criminal Procedure Act

The gist of this part of the grounds of appeal by Defendant 1 is that the judgment of the court below is unlawful in violation of Article 40(3) of the Criminal Procedure Act stipulating that “The name of the defense counsel must be stated in the written judgment,” as the private defense counsel of Defendant 1 submitted an application for resumption of argument on November 19, 2014, which is the day immediately before the date of the original judgment, and the private defense counsel of Defendant 1 submitted the application for resumption of argument.”

However, since the court below stated the name of a public defender as of the date of closing argument, it cannot be deemed that it violated Article 40(3) of the Criminal Procedure Act, and it cannot be deemed that this affected the conclusion of the judgment

C. As to Defendant 1’s remaining grounds of appeal on the grounds of unfair sentencing

In order to obtain money from a third party or to obtain goods on credit from a third party, a property profit acquired by a person by deceiving a third party to establish a right to collateral security in the name of the third party on real estate owned by the third party is the profit that can be used as collateral for the transaction with the third party (see Supreme Court Decisions 84Do119, Apr. 10, 1984; 96Do384, Mar. 22, 1996, etc.). The value is, in principle, equivalent to the maximum amount of the claim within the market value of the real estate (see Supreme Court Decision 200Do137, Apr. 25, 200).

Examining the reasoning of the judgment below in light of the relevant legal principles and the evidence duly admitted by the court of first instance, the court below is just in holding that the court below convicted Defendant 1 of the facts charged in this case except for the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud). Contrary to the allegations in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles

2. As to the Prosecutor’s ground of appeal

Based on its stated reasoning, the lower court acquitted Defendant 2 on the ground that the facts charged against Defendant 2 did not prove the relevant facts constituting an offense.

Examining the reasoning of the judgment below in light of the records, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical

3. Scope of reversal

As seen above, among the judgment below, the part of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against Defendant 1 should be reversed, and since the court below punished the remaining part of Defendant 1 as concurrent crimes, the part on Defendant 1 among the judgment below shall be reversed in its entirety.

4. Conclusion

Therefore, without examining Defendant 1’s assertion of unfair sentencing, the part on Defendant 1 among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The prosecutor’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)