[1] Criteria to determine whether the basic facts of several crimes are identical

[2] The case holding that since each "violation of the Act on Special Cases Concerning the Settlement of Traffic Accidents," which caused a traffic accident by negligence, and the "Fraud and attempted attempted fraud," which caused the occurrence of a traffic accident by intentionally claiming the insurance proceeds after causing the traffic accident, the basic factual relations cannot be deemed to be the same, the res judicata effect of the final and conclusive judgment on the former cannot be deemed to affect the latter

[1] Where a criminal trial becomes final and conclusive and conclusive, it cannot be repeatedly punished for the same crime (Article 13(1) of the Constitution), and where a public prosecution is instituted against a case identical with a case on which a final and conclusive judgment has been rendered, a judgment of acquittal shall be pronounced (Article 326 subparag. 1 of the Criminal Procedure Act). Whether res judicata effect of a final and conclusive judgment “violation of Special Cases Concerning the Settlement of Traffic Accidents” against the defendant affects “Fraud and attempted fraud” should be determined depending on whether the basic facts are the same. In addition, whether the basic facts are identical or not shall not be determined only from a pure social and legal perspective without completely excluding normative elements, and it is reasonable to view that the natural, social, or criminal defendant’s act constitutes a substantial part of the identity of the basic facts.

[2] The case holding that since each "violation of the Act on Special Cases Concerning the Settlement of Traffic Accidents," which caused a traffic accident by negligence and "the crime of fraud and attempted fraud" are completely different from the "violation of the Act on Special Cases Concerning the Settlement of Traffic Accidents" that caused the occurrence of a traffic accident, and "the crime of fraud and attempted fraud" are different from each other, the victim of the crime of violation of the Act on Special Cases Concerning the Settlement of Traffic Accidents, or the victim of the crime of fraud and attempted fraud, are also different from those of the persons who died of the traffic accident and of the insurance companies that concluded the defendant and the driver's insurance contracts, and therefore, the crime of violation of the Act on

[1] Article 13(1) of the Constitution, Article 298 and Article 326 subparag. 1 of the Criminal Procedure Act / [2] Article 298 and Article 326 subparag. 1 of the Criminal Procedure Act

[1] Supreme Court en banc Decision 93Do2080 delivered on March 22, 1994 (Gong1994Sang, 1368) Supreme Court Decision 97Do2487 delivered on August 21, 1998 (Gong1998Ha, 2365) Supreme Court Decision 2005Do9678 delivered on March 23, 2006 (Gong2006Sang, 7510 delivered on October 27, 2006)

Defendant

Defendant

Attorney Tae-won

Seoul High Court Decision 2009No2702 decided December 9, 2009

The appeal is dismissed.

The defendant and the public defender's grounds of appeal are also examined.

1. Regarding ground of appeal No. 1

In a criminal trial, the conviction shall be based on evidence with probative value sufficient to lead a judge to a reasonable doubt that the facts charged are true. If there is no evidence to form such a conviction, even if there is doubt that the defendant is guilty, it shall be determined as the benefit of the defendant. However, such conviction should not be necessarily formed by direct evidence, unless it violates the empirical and logical rules, and it may be formed by indirect evidence. Even if indirect evidence does not have full probative value as to the facts of the crime individually, if it is deemed that there is a comprehensive probative value that is not independent if comprehensive examination of all evidence is conducted under mutual relation, even if it does not have full probative value as to the facts of the crime (see Supreme Court Decision 2001Do4392, Nov. 27, 2001, etc.).

Examining the reasoning of the judgment of the court of first instance invoked by the court below in light of the records, it is just that the court below recognized that the defendant intentionally caused each of the above traffic accidents with the intent to acquire insurance money in light of the defendant's financial condition, revenue, circumstance of insurance coverage, and circumstances of each of the traffic accidents in this case. There is no error of violating the rules of evidence

2. Regarding ground of appeal No. 2

When a criminal trial becomes final and conclusive substantially and conclusive, it shall not be repeatedly punished for the same crime (Article 13(1) of the Constitution of the Republic of Korea), and where a public prosecution is instituted against a case identical with a case on which a final and conclusive judgment has been rendered, a judgment of acquittal shall be pronounced (Article 326 subparag. 1 of the Criminal Procedure Act). Whether res judicata of a final and conclusive judgment on the offense of violation of the Act on Special Cases Concerning the Settlement of Traffic Accidents against a defendant affects the crime of fraud and attempted fraud in this case shall be determined depending on whether the relevant basic facts are the same (see Supreme Court en banc Decision 93Do2080, Mar. 22, 1994). In addition, it is reasonable to determine whether the basic facts are identical or not only purely different from the normative elements, and it shall also be deemed that the relevant normative elements constitute a substantial part of the identity of basic facts, as well as the same.

On the other hand, the attitude of the act of violating the Act on Special Cases Concerning the Settlement of Traffic Accidents has caused a traffic accident by negligence, while the crime of fraud and attempted fraud of this case has been committed by intentionally claiming, receiving or attempted the insurance money after intentionally claiming the traffic accident, and at all differs in the form of each act. The victim of the crime of violating the Act on Special Cases Concerning the Settlement of Traffic Accidents is different from the one who died from the traffic accident, or the one who committed the fraud of this case and the one who committed the crime of attempted fraud of this case, from among the insurance companies that concluded the defendant and the driver's insurance contract. Therefore, the crime of the above violation of the Act on Special Cases Concerning the Settlement of Traffic Accidents and the crime of the fraud and attempted fraud of this case

3. As to the third ground for appeal

Examining the Defendant’s age, criminal records, character and conduct, environment, relationship with each victim of the judgment, motive and means of each crime as indicated in the judgment, as well as various circumstances that form the conditions for sentencing as indicated in the records, such as the circumstances after the commission of the crime, there is no substantial reason to recognize that the sentencing of the lower court is extremely unfair.

4. Conclusion

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

Justices Lee Hong-hoon (Presiding Justice)