[1] The case holding that the act of the highest-ranking salesperson of a fund-raisingd financial company without any exchange constitutes a violation of Article 23 (2) of the Door-to-Door Sales Act, where he received money as investment money from each subordinate salesperson, etc. using a multi-level marketing organization

[2] The relation between the crime of violation of Article 23 (2) of the Door-to-Door Sales Act and the crime of violation of Article 3 and subparagraph 1 of Article 2 of the former Act on the Regulation of Conducting Fund-Raising Business without Permission (=actual competition)

[3] The case affirming the judgment of the court below that conviction of violation of Article 3 of the former Act on the Regulation of Conducting Fund-Raising Business without Permission does not constitute a violation of Article 23 (2) of the Door-to-Door Sales Act

[1] Articles 23(2) and 52(1)3 of the Door-to-Door Sales, etc. Act / [2] Articles 23(2) and 52(1)3 of the Door-to-Door Sales, etc. Act, Articles 2 subparag. 1, 3, and 6(1) of the former Act on the Regulation of Door-to-Door Sales, Etc. (Amended by Act No. 10045, Feb. 4, 2010); Articles 37 and 40 of the Criminal Act / [3] Articles 2 subparag. 1, 3, and 6(1)3 of the former Act on the Regulation of Door-to-Door Sales, etc., (Amended by Act No. 1045, Feb. 4, 2010); Article 37 of the Criminal Act; Article 326 subparag. 1 of the Criminal Procedure Act

[2] Supreme Court Decision 2001Do2948 Decided September 14, 2001 (Gong2002Sang, 421) Supreme Court Decision 2002Do6427 Decided January 24, 2003, Supreme Court Decision 2007Do10414 Decided February 29, 2008 (Gong2008Sang, 494)

Defendant 1 and three others

Defendants

Attorney Im Dong-ho

Incheon District Court Decision 2008No3892-2 (Separation) Decided December 7, 2009

All appeals are dismissed.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

Article 23(2) of the Door-to-Door Sales Act provides, “No person shall conduct any monetary transaction without any transaction of goods, etc., or any actual monetary transaction by pretending any transaction of goods, etc., through a multi-level marketing organization or any similar organization that is composed of persons who have joined a multi-level marketing organization by stages.” It is clear that Article 23(2) of the Door-to-Door Sales, etc. Act prohibits “any person who conducts only

According to the reasoning of the judgment below, the defendants, the top-ranking salesperson of the non-indicted 1 corporation, in collusion with the non-indicted 2, who is the actual operator of the above company, received money as investment money from the defendants' subordinate salespersons by using the multi-level marketing organization. Thus, the defendants' act constitutes a case where the defendants' act was conducted against their subordinate salespersons without trading goods, etc. prohibited under Article 23 (2) of the Door-to-Door Sales Act.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to door-to-door sales.

The Supreme Court precedents cited in the grounds of appeal are inappropriate to invoke the instant case as they differ from the instant case.

2. Regarding ground of appeal No. 2

In relation to co-offenders who jointly process two or more persons in a crime, the conspiracy does not require any legal punishment, but is a combination of two or more persons to jointly process a crime and realize the crime. Even if there was no process of the whole conspiracy, if the combination of the doctors is made in order or impliedly through several persons, the conspiracy relationship is established, and even if there was no direct participation in the conduct, the persons who are not directly involved in the conduct are subject to criminal liability as co-principals against the other co-principals (see Supreme Court Decisions 98Do30, Mar. 27, 1998; 200Do3483, Nov. 10, 200; 2007Do2144, Jun. 1, 2007).

In light of the above legal principles and records, inasmuch as Defendants 2, 3, and 4 were co-principals of the class position of the director who is the highest salesperson of the non-indicted 1 corporation, the defendant 2, 3, and 4, and invested money in the name of investment in the fuel oil manufacturing and selling business with the non-indicted 2, the actual operator of the above company, etc., together with the investors, the defendant 2, 3, and 4 cannot be exempted from the liability for the violation of the Act on the Regulation of Conducting Fund-Raising as co-principals with Non-indicted 2, inasmuch as they participated in the act of receiving money from investors by an agreement that pays the investment principal only

The judgment of the court below to the same purport is just, and there is no violation of the rules of evidence, incomplete hearing, or misapprehension of the legal principles as to joint principal offenders.

3. As to the third ground for appeal

Article 23(2) of the Door-to-Door Sales Act provides that "no person shall conduct any monetary transaction without any transaction of goods, etc. using a multi-level marketing organization or any similar multi-level marketing organization." Articles 3 and 2 subparag. 1 of the former Act on the Regulation of Conducting Fund-Raising Business without Permission, Registration, Report, etc. (amended by Act No. 10045, Feb. 4, 2010; hereinafter the same shall apply) provide that "any person shall make an agreement to pay the whole amount of investment or an excess of the amount of investment to a large number of unspecified persons for the future with no approval, permission, registration, etc. under other Acts and subordinate statutes, and shall not make an investment." Thus, since Article 23(2) of the former Act on the Regulation of Door-to-Door Sales, etc. (amended by Act No. 10045, Feb. 4, 2010; hereinafter the same shall apply) provides that "any person who makes a monetary transaction using a multi-level marketing organization, etc. shall not be deemed an act of receipt.

According to the reasoning of the judgment below, Defendant 1 was sentenced to a fine of KRW 7,00,000 on January 18, 2008 by the Seoul Central District Court for a violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission, and the above judgment becomes final and conclusive on August 19, 2008. According to the above legal principles, the res judicata effect of the above final judgment on the violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission does not affect the violation of the Act on Door-to-Door Sales, etc. in this case. Thus, Defendant 1’s violation of the Act on Door-to-Door Sales, etc. against Defendant

The judgment of the court below to the same purport is just, and there is no violation of law as alleged in the grounds of appeal.

4. Conclusion

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

Justices Kim Nung-hwan (Presiding Justice)