The relationship between the violation of Article 3 of the Act on the Regulation of Conducting Fund-Raising without Permission and the violation of Article 3 (1) (Fraud) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (=actual concurrent crimes)

Article 3 of the Act on the Regulation of Conducting Fund-Raising Business without Permission does not include deception itself, and the crime of violating the above Act and the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) are separate crimes different from each other. Since the form of each other's act and the benefit and protection of the law are different, it is reasonable to see that both crimes are not commercial concurrent relations, but substantive concurrent relations, and it is not identical to the basic facts.

Article 3 of the Act on the Regulation of Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 3(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 37, 40 and 347 of the Criminal

Defendant

Defendant and Prosecutor

Attorney Lee Young-soo et al.

Busan High Court Decision 2006No480 decided Nov. 14, 2007

All appeals are dismissed.

The grounds of appeal are examined.

1. Judgment on the grounds of appeal by the prosecutor

A. As to the assertion against the rules of evidence

The summary of the facts charged in the judgment of the court below is that "the defendant habitually established the non-indicted 2 corporation with the non-indicted 1, etc., and mobilized the members "the meeting of persons love with the mother" as well as the non-indicted 3, and received a total of KRW 16,719,035,00 from the victims about 4,680 times from September 2004 to December 31, 2004, a total of KRW 16,719,035,00 from the victims as a share price for the share price," and the court below acknowledged the facts as stated in its reasoning based on the adopted evidence, and judged that the defendant was unable to prove that the above facts were acquired from the non-indicted 1,671,903,500 won from the share price paid by the investors to the non-indicted 2 corporation with some of the part of the establishment of the non-indicted 2 corporation and exercising de facto influence over the management of the non-indicted 2 corporation with the sex technique technology.

Examining the relevant evidence in light of the records, the above fact-finding and judgment of the court below are just, and there is no violation of the rules of evidence.

B. As to the misapprehension of legal principle

In a case where a court recognizes a more minor criminal facts included in the criminal facts charged within the scope recognized as identical to the facts charged, and where it deems that there is no concern that substantial disadvantage to the defendant's exercise of his/her right to defense in light of the progress of trial, it may, even if the indictment was not modified, recognize ex officio a criminal facts different from the facts charged as stated in the indictment, but if the indictment is not punished for the reason that the facts charged are serious in comparison with the facts charged, compared with the facts charged, if the indictment was not modified for the reason that the facts charged are not modified, it shall not be deemed illegal on the ground that the court, ex officio, did not recognize such criminal facts, unless it is recognized to be significantly contrary to justice and equity in light of the purpose of the criminal procedure, namely, prompt discovery of substantial truth by appropriate procedures (see Supreme Court Decisions 90Do1229, Oct. 26, 190; 96Do2234, Feb. 14, 1997, etc.).

The gist of the grounds of appeal by the prosecutor is as follows: even if based on the facts acknowledged by the court below, this is "when a third party obtains financial benefits by deceiving a person," which constitutes the elements of Article 347 (2) of the Criminal Act, but the court below acquitted the defendant of the facts charged on the ground that the defendant did not acquire financial benefits directly."

However, it is difficult to view that the court's finding the defendant guilty without changing the indictment that "the defendant had a third party acquire more than 1.6 billion won," which was prosecuted by acquiring 16.7 billion won directly by the defendant, does not constitute a substantial disadvantage to the defendant's exercise of the defendant's right to defense without any alteration in the indictment, and in comparison with the criminal facts charged, the court below found the defendant guilty as to some of the crimes of violation (Fraud) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter "Special Economic Crimes Act"), and the progress of the case in light of the fact that the court below found the defendant guilty as to the above facts in this case, since it does not punish him as a fraud under Article 347 (2) of the Criminal Act, it cannot be deemed that the court below erred by finding him guilty ex officio.

The prosecutor's ground of appeal is without merit.

2. Judgment on the Defendant’s grounds of appeal

A. As to the assertion against the rules of evidence

In full view of the evidence duly admitted, the court below found the defendant guilty of the fraud, habitual fraud, and the act of receiving money without permission among the facts charged of this case (excluding the part of habitual fraud which was found not guilty above), and further held that the prosecutor's prosecution against the fraud of this case does not constitute abuse of the right of prosecution on the ground that it is different from the facts charged, since it is recognized that the defendant was subject to a disposition of non-suspect 4 on July 2005 in relation to the crime of fraud against the victim non-indicted 4, but the crime was committed by deceiving the above victim, and obtained the above victim in the form of investment from May 29, 2003 to July 31, 2003, and obtained it by fraud, and the amount of fraud is different from the facts charged of this case.

Examining the evidence adopted by the court below and the court of first instance as cited by the court below in the records, it is proper to take such measures by the court below, and there is no error in the misapprehension of legal principles as to the violation of the Act on the Regulation of Specific Economic Crimes (Fraud) and the Act on the Regulation of Conducting Fund-Raising Business without Permission (hereinafter “Act on the Regulation of Fund-Raising

B. As to the assertion on the mutual relationship between the offense of violation of the Act on the Special Economic Crimes (Fraud) and the offense of violation of the same Act

It does not include deception itself. The crime of violation of the above Act and the crime of violation of the special law (Fraud) are separate crimes which differ from each constituent element thereof, and it is reasonable to see that both crimes are not ordinary concurrent relations, but substantive concurrent relations, since the form of each act and the legal interest protected by the law are different, and it cannot be seen as identical to the basic facts (see Supreme Court Decisions 2001Do1707, Jul. 13, 2001; 2003Do7428, Apr. 28, 2004, etc.). The court below acknowledged that the crime of violation of the above Act and the crime of violation of the special law (Fraud) was committed in violation of Article 3 of the Act on the Regulation of Conducting Fund-Raising, etc., and acknowledged that the crime was committed in violation of the above Act and Article 2-A of the judgment of the court below without recognizing a public conspiracy relationship with Non-Indicted 5 with the non-Indicted 3.

C. As to the assertion of misapprehension of legal principles as to the validity of disposal documents

In a criminal trial, unless there is a legal rule that a disposition document should be rejected even if it is a disposition document and it does not violate the rule of experience or logic, the preparation of evidence shall be deemed to belong to the exclusive authority of the fact-finding court (see Supreme Court Decision 81Do3148, Mar. 8, 1983). Thus, the ground of appeal that criticizes the judgment of the court below from other standpoint is without merit.

3. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)