[1] Whether the provisions of the Criminal Act concerning relative inheritance apply to the crime of violation of Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (affirmative)

[2] In case where a male who is not a lineal descendant of the head of the family, but a male who is not a lineal descendant of the head of the family, has not gone through the procedure of a statutory branch family in the family register and remains as a family, whether the family relationship of the head of the family is extinguished

[1] In full view of the provisions of Articles 354 and 328 of the Criminal Act, each crime of fraud and attempted fraud between lineal blood relatives, spouse, relatives living together, head of family, family, family or their spouse shall be exempted from punishment, and other relatives may institute a public prosecution only when there is a complaint. In addition, the nature of fraud under the Criminal Act is maintained even in the case of aggravated punishment under Article 3(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, which is a special law, and there is no express provision that Article 354 of the Criminal Act shall not be applied to the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, since Article 354 of the Criminal Act also applies to the crime

[2] Article 789 (1) of the former Civil Code (amended by Act No. 4199 of Jan. 13, 1990) provides that "family members shall naturally be divided into different types of marriage." Thus, even though a male who is not the lineal descendant of the head of the family is naturally divided into the family register of the head of the family, if the male who is not the lineal descendant of the head of the family is married is naturally divided according to the provisions of the law, and is still in the family register of the head of the family, the family relationship of the family of the head of the family shall be extinguished, regardless of such family register.

[1] Articles 328 and 354 of the Criminal Code, Article 3(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes / [2] Article 789(1) of the former Civil Code (amended by Act No. 4199 of Jan. 13, 190), Article 328(1) of the Criminal Code

[1] Supreme Court Decision 89Do582 delivered on June 13, 1989 (Gong1989, 1103)

Defendant

Prosecutor General;

Jeju District Court Decision 96Gohap134 delivered on February 25, 1997

The guilty portion in the original judgment shall be reversed. The defendant shall be punished by imprisonment with prison labor for two years; 300 days in the number of detention days prior to the original judgment shall be included in the above sentence; Provided, That the execution of the above sentence shall be suspended for three years from the date on which the original judgment became final and conclusive. Of the facts charged in this case, the punishment shall be exempted for each violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and attempted fraud against the victim 6. The indictment against the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

We examine the grounds of appeal.

1. According to the records, on February 25, 1997, the court below found the defendant guilty of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Fraud), attempted fraud, forgery of private documents, and uttering of the above investigation documents among the facts charged in this case against the defendant, and sentenced the defendant to a suspended sentence of imprisonment for 5 years (including 300 days out of the number of detention days before the original judgment) and sentenced him to a suspended sentence of imprisonment for 3 years (including 300 days out of the number of detention days before the original judgment) and acquitted him of the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax). The defendant filed an appeal and a final appeal against the non-guilty portion in the original judgment without filing an appeal and dismissed only

2. However, comprehensively taking account of the provisions of Articles 354 and 328 of the Criminal Act, each crime of fraud and attempted fraud between lineal blood relatives, spouse, relatives living together, head of family, family, or their spouse shall be exempted from punishment, and other relatives may institute a public prosecution only upon a complaint. In addition, the nature of fraud under the Criminal Act is maintained even in cases subject to aggravated punishment under Article 3(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter “Special Economic Crimes Act”), and there is no express provision that the application of Articles 354 and 328 of the Criminal Act is excluded from the application of Article 3(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (see Supreme Court Decision 89Do582, Jun. 13, 1989).

Meanwhile, Article 789(1) of the former Civil Act (amended by Act No. 4199 of Jan. 13, 1990) provides that "family members shall naturally be divided if they are married." Thus, even though a male who is not the lineal descendant of the head of the family is married to a family, if he or she is married to a family member, he or she remains in the family register of the head of the family, even though it is naturally divided according to the provisions of the law, and even if he or she is not in accordance with the procedure of statutory branch of the family register and remains in the family register of the head of the family,

According to the records, the victims of each of the crimes of violation of special law (Fraud) and attempted fraud among the facts charged in this case are family members located in the same family register as the defendant who is the defendant in Australia, and the victim 1 is the victim 2, 3, 4, and 5 is the defendant's senior mother, and the victim 6, 7 is the victim's senior mother, and the victim 6, and 7 is the defendant's senior mother. On April 17, 1984, the victim 6 is married with the non-indicted 1 in Japan and applied for the adjustment of the family register on November 8, 198, and the rest of the victim 2, 3, 4, 5, 7 has not yet been married (the records are written in the family register, the transcript of the family register, the transcript of the family register, and the copy of the original copy of the family register).

If the facts are identical, even if the victim 6, who is the family head of the defendant's family register, is currently registered in the same family register as the defendant who is the family head of the household, as long as the legal branch of the Civil Code has been married after the enforcement of the statutory branch of the defendant, the victim 6 cannot be viewed as having a relationship between the defendant and the family head of the family under Article 328 (1) of the Criminal Code, and is only a relation between the defendant and the family head of the family under paragraph (2) of the same Article, and the remaining victims are all family members registered in the family register of the defendant who is the family head of the household, and it is evident that the family head of the family and the family head of the family under paragraph (1) of the

Therefore, the court in the original judgment should exempt the victims from punishment by applying the provisions of Articles 354 and 328(1) of the Criminal Act with respect to the violation of special law (Fraud) and attempted fraud against the victims other than the victims 6 of the charges in this case, and with respect to the victims 6 of the victim, the victim's complaint must be filed pursuant to the provisions of Article 354 and Article 328(2) of the Criminal Act, and there is no evidence to prove the existence of the complaint. Thus, the public prosecution should be dismissed pursuant to Article 327 subparagraph 2 of the Criminal Procedure Act. However, the court below found them guilty of all of the charges in this case, and sentenced them to a single punishment by treating them as concurrent crimes under the former part of Article 37 of the Criminal Procedure Act. Thus, there is a ground for violation of law under Article 441 of the Criminal Procedure Act in the original judgment

In addition, since the guilty portion in the original judgment (which includes the violation of special law (Fraud), attempted fraud, fabrication of private documents, and use of falsified investigation documents) is unfavorable to the defendant as prescribed in the proviso of Article 446 subparagraph 1 of the Criminal Procedure Act, the entire guilty part in the original judgment shall be reversed, and the judgment shall be rendered again.

3. Criminal facts;

Upon the commencement of inheritance of each real estate listed in the separate sheet Nos. 1 and 2 owned by Nonindicted Party 2 as of April 10, 1993 following the death of the deceased Nonindicted Party 2, the Defendant: (a) conspired with Nonindicted Party 3 for the purpose of exercising the right to use it as evidence in a lawsuit to acquire real estate listed in the separate sheet No. 1 and 2, with the intention of exercising the right to use it as evidence, to submit it as evidence, in collusion with Nonindicted Party 3, for the purpose of exercising the right to use it as evidence, in a lawsuit to acquire the real estate listed in the separate sheet No. 1 and 2, by means of the fact that Nonindicted Party 2’s close relatives are not in the Republic of Korea and who are the successors to manage the inherited property; and (b) the end and writing of

A. On February 4, 1987, the Defendant and Nonindicted 3 signed a written contract dated February 4, 1987 to the effect that the Defendant and Nonindicted 3 jointly purchase the real estate listed in the separate sheet No. 1 from Nonindicted 2 in the Buddhist land located in Incheon in July 1993, and forged one copy of the written contract under the name of Nonindicted 2 signed by Nonindicted 2, who had arbitrarily dismissed on the seller’s name;

B. around the same time, a receipt was prepared to the effect that he received KRW 40 million as the down payment set forth in the sales contract set forth in the preceding paragraph at the same place, and Nonindicted Party 2’s name is forged, including the charge of forging a receipt with his arbitrary seal affixed on the name next to the name of Nonindicted Party 2, and in the same manner, the receipt with Nonindicted Party 2 as indicated in the attached list of crimes is forged;

C. Around August 1993, in the Incheon District Court located in Incheon District Court, each of the forged contracts and receipts was filed with the court staff under the name of the court, who is unaware of such circumstances, and submitted a lawsuit for the registration of ownership transfer to the complaint and exercised it.

Summary of Evidence

Each fact in the ruling,

1. Entry of the defendant in the protocol of trial in the court's original judgment;

1. Each protocol of examination of the accused prepared by the public prosecutor, which corresponds thereto;

1. Each statement that corresponds to the written statement of the accused, the victim, and the Kim Jong-Un in the public prosecutor's preparation;

1. Statement corresponding to a report on investigation into the preparation of scrap metal for prosecution officials;

1. A certified copy of the family register, a copy of the certified copy of the register, a copy of the judgment of Jeju District Court 93 Gohap3024, a copy of the court ruling of Jeju District Court 93 Gohap3024, a decision of correction of protocol for filing a lawsuit or telephone, a record of telephone settlement, a certificate of filing a lawsuit, a certificate of delivery, a letter of agreement, each receipt, each certificate of personal seal impression,

Comprehensively taking account of the above, there is proof.

Application of Statutes

1. Article applicable to criminal facts;

Article 231 of the Criminal Act (the point of each private document in the market), Articles 234 and 231 of the Criminal Act (the point of uttering of each private document in the market)

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (Punishment prescribed for the crime of uttering of any falsified private document at the time of sale)

1. Selection of kind of punishment;

Each sentence of imprisonment (as to the crime of forging private documents at the time of making a statement and the crime of uttering of a forged agreement)

1. Aggravation for concurrent crimes;

The punishment prescribed in the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (Aggravation of the punishment prescribed in the Enforcement Decree of Forgery Agreement with the most severe offense)

1. Calculation of the number of detention days before sentencing;

Article 57 of the Criminal Act

1. Suspension of execution;

Article 62 (1) of the Criminal Code ( normal consideration, such as the fact that the defendant repents his mistake, and that an inherited property has been already returned to the victims or measures that can be returned have been secured)

Parts of exemption from punishment

Of the facts charged in the instant case, the Defendant and the victims of the instant case have relations between the head of family and the family under Article 328(1) of the Criminal Act, as seen earlier, are exempted from punishment for the charge of violating the Special Economic Crimes (Fraud) on each real estate listed in the separate sheet No. 1 on the victim 1, 2, 3, 4, 5, 7, and each real estate listed in the separate sheet No. 2 on the separate sheet No. 2 list No. 1 on the part of the instant charges.

Public Prosecution Rejection Parts

Of the facts charged in this case, the defendant and the victim 6 are relatives provided for in Article 328(2) of the Criminal Act and can be prosecuted only when a complaint is filed, since the defendant and the victim 6 are those relatives provided for in Article 328(2) of the Criminal Act, among the facts charged in this case as to each real estate listed in the separate sheet No. 1 with regard to the victim 6, in violation of the special law (Fraud) and the separate sheet No. 2 with regard to each real estate listed in the separate sheet No. 1 with regard to each real estate listed in the separate sheet No. 2 with regard to the victim

4. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jin-hun (Presiding Justice)