[1] Whether an incidental business directly and closely related to the "payment, collection and receipt between the Republic of Korea and a foreign country" constitutes a foreign exchange business under Article 3 (1) 16 (e) of the former Foreign Exchange Transactions Act (affirmative)

[2] The number of crimes in case where a number of unregistered foreign exchange businesses in violation of Articles 27(1)5 and 8(1) of the former Foreign Exchange Transactions Act are continuously conducted for a certain period under a single and continuous criminal intent (=general crime)

[3] In a case where the defendant was prosecuted for violation of the former Foreign Exchange Transactions Act on the ground that he received money from North Korean defectors without being registered with competent authorities and transferred money to a domestic account under the name of the defendant to the bank account designated by Bracker, the case holding that the court below erred by misapprehending the legal principles in calculating the value of the object of the act of a non-registered foreign exchange business unit and simply added the amount of money deposited and remitted

[1] Article 3 (1) 16 (b) of the former Foreign Exchange Transactions Act (amended by Act No. 10618, Apr. 30, 201; hereinafter “the Act”) provides that “payment, collection, and receipt between the Republic of Korea and a foreign country” shall be “foreign exchange business”; Article 3 (1) 16 (e) of the same Act provides that “the business prescribed by the Presidential Decree, which is similar to the above subparagraph (b) shall be “foreign exchange business”; Article 6 subparagraph 4 of the former Enforcement Decree of the Foreign Exchange Transactions Act (amended by Presidential Decree No. 22493, Nov. 15, 2010) provides that “the business incidental to the business, such as Article 3 (1) 16 (b) of the Act, falls under the said “business prescribed by the Presidential Decree”; and therefore, any incidental business directly necessary and closely related to “payment, collection, and receipt between the Republic of Korea and a foreign country” constitutes foreign exchange business under Article 3 (1) 16 (e) of the Act.

[2] Where a number of unregistered foreign exchange businesses in violation of Articles 27(1)5 and 8(1) of the former Foreign Exchange Transactions Act (amended by Act No. 10618, Apr. 30, 201) continue to be conducted for a certain period under the single and continuous criminal intent, each act constitutes a single comprehensive crime.

[3] In a case where the Defendant was indicted for violation of the former Foreign Exchange Transactions Act (amended by Act No. 10618, Apr. 30, 2011) on the ground that he/she received money from North Korean defectors to transfer to China, such as expenses for North Korea's escape from North Korea's family residing in North Korea, from the domestic account under the name of the Defendant, and remitted money to the designated account by the Bracker, the case holding that the lower court erred by misapprehending the legal doctrine on the calculation of the value of the object, on the ground that the value of the object of the foreign exchange transaction incidental to the non-registered foreign exchange transaction is limited to the amount deposited by the remitter from the remitter, and the amount transferred to the returned account shall not be added to the value of the object.

[1] Article 3(1)16(b) and (e) of the former Foreign Exchange Transactions Act (Amended by Act No. 10618, Apr. 30, 201); Article 6 subparag. 4 of the former Enforcement Decree of the Foreign Exchange Transactions Act (Amended by Presidential Decree No. 22493, Nov. 15, 2010) / [2] Article 37 of the Criminal Act; Articles 8(1) and 27(1)5 of the former Foreign Exchange Transactions Act (Amended by Act No. 10618, Apr. 30, 201) / [3] Article 37 of the Criminal Act; Articles 8(1) and 27(1)5 of the former Foreign Exchange Transactions Act (Amended by Act No. 10618, Apr. 30, 2011)

[1] [2] Supreme Court Decision 2008Do10912 Decided October 15, 2009 / [1] Supreme Court Decision 2005Do1603 Decided May 8, 2008 (Gong2008Sang, 860) / [2] Supreme Court Decision 2002Do5341 Decided August 22, 2003 (Gong2003Ha, 1975)

Defendant

Defendant

Law Firm LLC et al.

Incheon District Court Decision 2011No193 Decided September 9, 2011

The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed by a defense counsel).

1. As to the assertion of misapprehension of legal principles as to the number of crimes and the statute of limitations

A. Article 3(1)16(b) of the former Foreign Exchange Transactions Act (amended by Act No. 10618, Apr. 30, 201; hereinafter “the Act”) provides that “payment, collection, and receipt between the Republic of Korea and a foreign country” shall be “foreign exchange business”; Article 3(1)16(e) of the same Act provides that “business prescribed by the Presidential Decree as similar to those under the above subparagraph(b)” shall be “foreign exchange business”; Article 6 subparag. 4 of the Enforcement Decree of the Act (amended by Presidential Decree No. 22493, Nov. 15, 2010) provides that “business incidental to the business under Article 3(1)16(b) of the Act” shall fall under the above “business prescribed by the Presidential Decree”; Article 3(1)16(b) of the same Act provides that “payment, collection, and receipt between the Republic of Korea and a foreign country” shall constitute several foreign exchange business under Article 3(1)16(e)(b) of the Act’s) and Article 208(3) of the Act.

B. The lower court determined that each transactional act, which the Defendant intended to remit to China, such as expenses for North Korea's families living in North Korea, and request for remittance to North Korea's families, was directly necessary and closely related to "payment, collection and receipt between the Republic of Korea and a foreign country" and then constitutes a blanket crime. In light of the aforementioned legal principles and the evidence duly admitted by the lower court, the lower court was justifiable, and did not err by misapprehending the legal doctrine on the number of crimes or the statute of limitations.

C. Meanwhile, in calculating the value of an object of a foreign exchange business unit without registration, the court below simply added the amount deposited and remitted when the defendant remitted the money deposited by the remitter to the passbook designated by Broker for the purpose of returning the money. In view of the fact that each of the above acts is a phased act with the aim of infringing the same legal interest, the value of the object should be limited to the amount deposited by the remitter and shall not be added to the value of the object until the amount returned again to the money deposited by the remitter. Therefore, the court below erred by misapprehending the legal principles on the calculation of the value of the object of the act of a foreign exchange business unit without registration, and it is reasonable to view that the amount of the money remitted to the money deposited by the defendant and the statutory penalty of the fine is not more than three times the value of the object of the violation (Article 27 of the Act).

2. As to the assertion of self-defense and necessity

The defendant's justifiable act and emergency evacuation allegation are asserted as grounds for appeal only after the defendant submitted a written opinion after the expiration of the period of appeal, and the court below did not make ex officio decision, and they cannot be legitimate grounds for appeal.

3. As to the assertion of mistake of fact

In light of the evidence duly admitted by the court below, the court below was just in holding that all the facts charged of this case are recognized, and there was no error exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

4. Conclusion

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

Justices Park Poe-young (Presiding Justice)