Whether the number of persons who had not shown before the opening can be regarded as a self-denunciation under Article 52 of the Criminal Act (negative)

The first reason why Article 52 of the Criminal Code is a mitigation of punishment is that the criminal is divided into crimes. Therefore, a self-denunciation who has not been divided into crimes can not be regarded as a self-denunciation as prescribed by the provisions of the Criminal Code even if he/she is a self-denunciation.

Article 52 (1) of the Criminal Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant-appellant-appellee)

Defendant 1 and two others

Defendants

Attorney Lee Sung-soo et al.

Seoul High Court Decision 92No4848 delivered on March 20, 1993

All appeals are dismissed.

As regards Defendant 1 and 2, 25 days of detention after the appeal shall be included in each principal sentence.

Each ground of appeal

1. Defendant 1 and his defense counsel’s grounds of appeal are examined as follows.

The court below's decision of the first instance which found Defendant 1 guilty of the facts charged in this case is correct, and there is no illegality such as the theory of lawsuit, and all arguments are without merit.

2. Defendant 2 and his defense counsel’s grounds of appeal are examined.

A. As to Defendant 2’s ground of appeal No. 1 and his defense counsel’s ground of appeal on the grounds of appeal, the lower court did not err in maintaining the judgment of the first instance court that recognized Defendant 2 received KRW 60,000,000 as the case cost for the instant loan, and therefore, all of the arguments are without merit.

B. As to the ground of appeal No. 2 by the defendant

Defendant 2’s argument that the instant crime constitutes occupational embezzlement is merely an independent opinion and cannot be accepted.

C. As to ground of appeal No. 3 by the defendant

The first reason why Article 52 of the Criminal Code is the reason why the criminal is subject to mitigation of punishment is divided into the crimes. Thus, a self-denunciation who does not repent of the crimes cannot be said to be a self-denunciation as prescribed by the above Criminal Code even if he/she is a self-denunciation (Supreme Court Decision 82Do3248 delivered on March 8, 1983).

Therefore, the court below's decision that the defendant 2 could not be recognized as a person because it is difficult to see that he had the intention at the time of his appearance, in light of the fact that the defendant 2 was voluntarily present at the investigative agency but was investigated and denied the first crime, is justified and there is no reason to object to this.

D. As to the ground of appeal No. 4 by the same defendant

In this case where imprisonment for less than 10 years is sentenced, the argument of unreasonable sentencing cannot be a legitimate ground for appeal.

3. Defendant 1 and Defendant 2 filed an appeal against a prosecuted case violating the Mutual Saving and Finance Company Act, but the petition of appeal did not state the grounds therefor and did not submit a statement of grounds for appeal within the lawful period. Thus, this part of the appeal is without merit.

4. As to Defendant 3’s ground of appeal

A theory of lawsuit may not be a legitimate ground for appeal in a case where the amount of punishment by the court below is unreasonable or a fine is imposed.

5. All appeals shall be dismissed, and for defendants 1 and 2, twenty-five days of detention days after the appeal shall be included in each original sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Sang-won (Presiding Justice)