[1] Whether incidental business directly 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)14(e) of the Foreign Exchange Transactions Act (affirmative)

[2] The case holding that the act of a person engaged in so-called "foreign exchange enterprise" in the Republic of Korea received money from a person who wants to remit money to the United States, along with fees including profits from exchange rates, constitutes a foreign exchange business under Article 3 (1) 14 (e) of the Foreign Exchange Transactions Act

[1] Article 3 (1) 14 (b) of the Foreign Exchange Transactions Act provides that "payment, collection and receipt between the Republic of Korea and a foreign country," and Article 3 (1) 14 (e) of the same Act provides that "business similar to the above (b) and other business prescribed by Presidential Decree," and Article 5 subparagraph 3 of the Enforcement Decree of the Foreign Exchange Transactions Act provides that "business incidental to the above business, etc., shall be "foreign exchange business" and "business incidental to the above (b)" shall be "business under the Presidential Decree," and it constitutes "foreign exchange business under the above subparagraph (e)."

[2] In a case where a person who is engaged in so-called "foreign exchange enterprise" in Korea received money from a person who wants to remit money to the United States without registration, along with fees, including profits arising from exchange rate differences, the case holding that such act constitutes a foreign exchange business under Article 3 (1) 14 (e) of the Foreign Exchange Transactions Act, and is a incidental business directly necessary and closely related to "payment, collection and receipt between the Republic of Korea and a foreign country", and thus punished as a violation of the Foreign Exchange Transactions

[1] Article 3 (1) 14 (b) and (e) of the Foreign Exchange Transactions Act, Article 5 subparagraph 3 of the Enforcement Decree of the Foreign Exchange Transactions Act / [2] Article 3 (1) 14 (b) and (e) of the Foreign Exchange Transactions Act, Article 5 subparagraph 3 of the Enforcement Decree of the Foreign Exchange Transactions Act

Defendant

Defendant and Prosecutor

Attorney Kim Jong-han

Incheon District Court Decision 2004No2793 Decided February 4, 2005

All appeals are dismissed.

We examine the grounds of appeal.

1. Judgment on the Defendant’s grounds of appeal

Article 3 (1) 14 (b) of the Foreign Exchange Transactions Act provides that "payment, collection and receipt between the Republic of Korea and a foreign country," and Article 3 (1) 14 (e) of the same Act provides that "business prescribed by Presidential Decree, which is similar to those under the above subparagraph (b) shall be "foreign exchange business" and Article 5 subparagraph 3 of the Enforcement Decree of the Foreign Exchange Transactions Act provides that "business incidental to the above subparagraph (b) shall be "business prescribed by Presidential Decree," and that "business incidental to the above subparagraph (b) shall be "business incidental to the payment, collection and receipt between the Republic of Korea and a foreign country," which is directly necessary and closely related to "payment, collection

According to the facts duly confirmed by the court below, the defendant, in collusion with the non-indicted 1 and 2, has the same effect as receiving and remitting money from the non-indicted 1 and 2 in Korea to the United States or from the persons who wish to transfer money to Korea in the United States, without registering with the Minister of Finance and Economy, and is engaged in so-called "foreign exchange enterprise" in which the defendant in Korea is taking advantage of the difference in exchange rates, who is the accomplice in the United States, in accordance with the order of Non-indicted 2, who is the accomplice in the United States, delivered KRW 120,000 won as stated in the annexed crime List (1) No. 761 of the annexed crime List (1) to the non-indicted 2, who wishes to transfer money from the non-indicted 1 and 2 to the non-indicted 2, and if the above facts are the same, the defendant's delivery of the money to the United States with the fees, including the profits arising from exchange rates, constitutes "foreign exchange transactions

The judgment of the court below which made the same purport is just, and there is no violation of the law by misapprehending the legal principles as to foreign exchange affairs under Article 3 (1) 14 of the Foreign Exchange Transactions Act as alleged in the ground of

The defendant's ground of appeal cannot be accepted.

2. Judgment on the grounds of appeal by the prosecutor

According to the records, the court below reversed the judgment of the court of first instance on the ground of the existence of reasons for ex officio reversal in accordance with changes in the indictment at the court below, and it is clear that the court below rendered a guilty verdict on the whole facts charged. The prosecutor's appeal on the premise that the court below rendered a verdict of innocence on part of the facts charged

3. Conclusion

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

Justices Kim Nung-hwan (Presiding Justice)