2015Do40 Fraudulent, Violation of the Specialized Credit Financial Business Act, thief

A

Defendant

Attorney P (National Ship)

Ulsan District Court Decision 2014No869 Decided December 17, 2014

April 23, 2015

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

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

1. As to the ground of appeal on the larceny among the facts charged in the instant case

(1) In a case where a judgment of conviction has become final and conclusive on a part of several of the facts constituting a comprehensive crime as a habitual offender, if a new prosecution has been instituted on the remaining crimes committed prior to the judgment of facts in the final and conclusive judgment, such new prosecution is deemed to have been instituted on the same case as the case in which the final and conclusive judgment was rendered, and thus, a judgment of acquittal shall be rendered (Article 326 subparagraph 1 of the Criminal Procedure Act). However, in order to apply such a legal doctrine, the relevant criminal defendant needs to be prosecuted and sentenced as a habitual offender at the final and conclusive judgment before and after the final and conclusive judgment is deemed to have been charged as a crime constituting a basic crime not for habitual offender, and in a case where the same is committed, all of them shall not be deemed to have been a comprehensive crime as a habitual offender, even if it is determined that the final and conclusive judgment prior to the final and conclusive judgment constitutes a part of the final and conclusive judgment (see, e.g., Supreme Court en banc Decision 2004Do32616, Sept. 26, 2004).

(2) On June 30, 2013, the lower court affirmed the first instance judgment convicting the Defendant of this part of the charges, which read, “within the Ulsan-gu Seoul-gu Dagro and the second floor water surface, a copy of the physical card held by the victim E was stolen.”

However, according to the records, the Defendant was sentenced to two years of imprisonment for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes in the Ulsan District Court on October 25, 2013, and the judgment became final and conclusive on October 28, 2013 (hereinafter “the final and conclusive judgment of this case”). The criminal facts of the final judgment of this case constitute a theft of KRW 20,000,000, totaling four victims owned by the Defendant through the aforementioned methods, from the time on four occasions until July 1, 2013, by putting the Defendant into the victim’s house located in Ulsan-gun-gun, Ulsan District Court on June 2013 (hereinafter “the final and conclusive judgment of this case”).

According to the above facts, the facts charged in this part of the facts charged prior to the pronouncement of the final judgment of this case are deemed to have been less by the realization of the defendant's theft habits in light of the date, place, means and methods of the crime, and the defendant's previous conviction. Thus, the facts charged in this part of the facts charged prior to the pronouncement of the final judgment of this case constitute a single crime under the substantive law, which is a single crime under the Act on the Aggravated Punishment, etc. of Specific Crimes.

Therefore, the final and conclusive judgment of this case also affects the facts charged in relation to this part, which is a single comprehensive crime, so this part of the facts charged constitutes a final and conclusive judgment, and thus, the judgment of acquittal should be rendered pursuant to Article 326 subparagraph 1 of the Criminal Procedure Act.

(3) Nevertheless, the lower court erred by misapprehending the legal doctrine on the scope of res judicata effect of the final and conclusive judgment, thereby adversely affecting the conclusion of the judgment.

2. Scope of reversal

As seen earlier, the part of the judgment of the court below regarding larceny should be reversed, and in relation to the relation between fraud and violation of the Specialized Credit Finance Business Act and concurrent crimes under the former part of Article 37 of the Criminal Act, one punishment should be determined for the whole of the larceny. Therefore, the judgment of the court below

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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

Justices Park Sang-hoon

Justices Kim Jae-tae

Chief Justice Cho Jae-dae